Boddu Satyavathi vs Boddu Ramakrishna Rao on 7 November, 2006

7/21/2019 Boddu Satyavathi vs Boddu Ramakrishna Rao on 7 November, 2006

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Andhra High Court

Boddu Satyavathi vs Boddu Ramakrishna Rao on 7 November, 2006

Equivalent citations: 2007 (2) ALD 591, 2007 (3) ALT 417

Author: P L Reddy

Bench: P L Reddy

JUDGMENT P. Lakshmana Reddy, J.

1. This is an appeal filed by the unsuccessful plaintiff against the judgment and decree dated

7-7-1996 passed in O.S. No. 6 of 1984 on the file of the Subordinate Judge, Kovvur.

2. The parties to this appeal will hereinafter be referred as plaintiff and defendant for the sake of

convenience.

3. The facts, which are relevant for the purpose of disposal of this appeal in brief, are as follows:

The plaintiff herein Smt. Boddu Satyavathi filed the suit for specific performance of the contract of

sale dated 25-6-1983 and for direction to the respondent-defendant to execute sale deed within the

time stipulated by the Court or in the alternative to direct the respondent-defendant to refund Rs.

60,000/- at 6% per annum from the date of suit till the date of realization by creating a charge on

the plaint schedule property and also for a direction to give Rs. 3,600/-being the value of the stamps

purchased by the plaintiff but carried away by the defendant, with interest at 6% per annum from

the date of the suit till the date of realization and also costs of the suit.

The case of the plaintiff is that the defendant is the absolute owner of two items of land shown in the

plaint schedule admeasuring Ac.2-40 cents and he agreed to sell the said property for Rs.60,000/[email protected],000/- per acre to the plaintiff herein and received Rs. 30,000/- towards earnest

money and delivered possession of the land to the plaintiff and executed agreement of sale dated

25-6-1983 and the father-in-law of the plaintiff Sri Boddu Ramachandra Rao arranged the said

transaction on behalf of the plaintiff. As per the terms of that agreement the plaintiff shall discharge

the loans due from the defendant to the Co-operative Society and Bank of India from out of the sale

consideration and shall pay the remaining balance on or before 4-8-1983 and take sale deed from

the defendant at the expenses of the plaintiff. Sri Boddu Ramachanra Rao who looked after the

transaction paid Rs. 17,215.53 ps. to Bank of India, Pasivedala on 10-8-1983 towards the discharge

of the debt due by the defendant and further paid a sum of Rs. 7,703/- in discharge of the loan due

to Dhannavaram Co-operative Central Bank at Nidadavole and thus the total sum of Rs. 54,918.53

ps. was paid and the balance of Rs. 5,081.47 ps. was also paid on 18-8-1983 at the time of execution

of sale deed. The plaintiffs father-in-law and the defendant went to the Sub-Registrar's Office on

18-8-1983 and the plaintiffs father-in-law purchased stamps worth Rs. 3,600/- as per the market

value of the land from one Somayajulu, a stamp vendor at Nidadavole for the purpose of drafting the

sale deed on the said stamps. Sale deed has been drafted on those stamps by Chamarti Subba Rao, a

licensed document writer who was Head Village Karnam of Nidadavole. The plaintiffs father-in-law

paid the balance of Rs. 5,081.47 ps. to the defendant and the defendant signed the sale deed as well

as papers for mutation in the name of the plaintiff to be presented to the Sub-Registrar. But by the


Indian Kanoon - http://indiankanoon.org/doc/765503/ 1



time the writing of the sale deed was completed it was late in the evening and could not be registered

on that day and the defendant made a note of the amounts received and also amounts paid to the

banks by the plaintiff in his own hand and showing the balance due to him as Rs. 5,081.47 ps. on a

smaller paper before the execution of the sale deed and gave it to the plaintiffs father-in-law. After

completion of the document the defendant demanded further payment of Rs. 358/- stating that he

incurred the said expenditure for transplanting paddy on 5-6-1983 for which plaintiffs father-in-law

did not agree. As the document could not be registered for want of time and as the demand for

payment of Rs. 358/-was still there, the completed document and other papers including the sale

agreement were kept with Sri Chamarti Hanumantha Rao who was the Village Karanam of

Gopavaram for safe custody to be given at the time of registration. As the plaintiffs father-in-law was

employed in Panchayat Raj Department was very busy and could not lookafter the registration of the

document for sometime. On 18-12-1983 when the father-in-law of the plaintiff wanted to take steps

for compulsory registration, the said Chamarti Hanumantha Rao with whom the papers were kept

could not be traced on 18-12-1983 and then the father-in-law of the plaintiff suspected some

foulplay and lodged a report with the police at Nadadavole, but the police did not take any action.

Later, Chamarti Hanumantha Rao returned to Nidadavole about ten days prior to the filing of the

suit and informed the plaintiff that on 15-12-1983 the defendant came to him and asked for the

documents stating that he wanted to verify the amounts and wanted to show the documents to his

brother and that later did not return the said documents and then he too gave report to the police,

Nidadavole. Thus, the defendant having received the entire consideration committed offence of

theft, cheating and criminal breach of trust by taking away the documents. The defendant is

proclaiming that he would enter into the plaint schedule property and hence the plaintiff had no

option except to file the present suit for specific performance and the document could not be

registered even if it is traced on account of lapse of more than four months.

4. The defendant contested the suit and filed the written statement pleading as follows:

Sri B. Ramachandra Rao, the father-in-law of the plaintiff is close relation of the defendant and he

had implicit faith in Ramachandra Rao and the said Ramachandra Rao misused the trust reposed on

him. When the defendant wanted to sell the plaint schedule property, Ramachandra Rao wanted to

purchase the same in the name of his daughter-in-law and bargain was settled between him and

Ramachandra Rao at Rs. 25,000/- per acre. But, Ramachandra Rao paid only Rs. 1 1,000/-and not

Rs. 30,000/-. On the date of agreement of sale, Ramachandra Rao took possession of the land.

Ramachandra Rao agreed to discharge the loans of the defendant due to the Co-operative Society,

Dharmavaram and Bank of India, Pasivedala and to pay the balance within one month fifteen days.

Ramachandra Rao paid both the debts due to the Co-operative Society, Dharmavaram and Bank of

India, Pasivedala. On 15-8-1983 Ramachandra Rao informed the defendant that he would be

securing the balance consideration by 18-8-1983 and the registration can be fixed on that day.

Accordingly, the defendant was ready on 18-8-1983 to discharge the balance of sale consideration

and to execute the sale deed. That himself and Ramachandra Rao went to Sub-Registrar's Office on

18-8-1983. Ramachandra Rao purchased the stamps and instructed the document writer Subba Rao

to prepare the sale deed and other necessary papers for registration and when the defendant

requested Ramachandra Rao to pay the balance of Rs. 24,000/- and odd, Ramachandra Rao

informed that his son Prasad went to Mukkamala to secure the amount and that he would return





with the amount and the sale deed can be signed and presented for registration. Thereafter, the sale

deed and other papers were made ready and the defendant signed on all the papers except the sale

deed. They were waiting at Sub-Registrar's Office for money. But the husband of the plaintiff did not

return and the balance amount was not paid to the defendant and hence the defendant did not sign

the sale deed. After waiting till 5.00 p.m. all of them returned to their respective houses. Thus, the

sale deed could not be executed and presented for registration for non-payment of balance amount

of Rs. 24,000/- and odd. Subsequently also the defendant demanded Ramachandra Rao to pay the

balance and complete the transaction, but Ramachandra Rao and his son have been postponing the

same stating that the amount has not been secured, and dragged on the matter for more than four

months with an ulterior motive. Ramachandra Rao by using his influence wanted to coerce the

defendant with the help of police to execute the sale deed and attempted to get him arrested by the

police. Ramachandra Rao invented a story that the sale deed was signed by the defendant and the

papers were deposited with Hanumantha Rao, a Village Karanam of Gopavaram and that the sale

deed and other connected papers were taken away by the defendant. Both Ramachandra Rao and

Hanumantha Rao are close friends and classmates and therefore they invented a false story. It is

further pleaded that the defendant never wrote any chit mentioning the amounts received and

amount due etc. The defendant never demanded Rs. 358/- towards the expenditure for

transplanting the paddy. It is also pleaded that the plaintiff is not entitled for equitable relief of

specific performance. Without paying the entire sale consideration, the plaintiff wants to enjoy the

fruits of the land. The plaintiff is not entitled to get the sale deed registered and he wants to drag on

the matter and there is no loss for the plaintiff as injunction has been obtained by them and she is

continuing in possession of the property without payment of balance consideration amount of more

than Rs. 24,000/-. The defendant further pleaded in the written statement that if the Court comes

to the conclusion that the plaintiff is entitled to the relief of specific performance, the plaintiff

should be directed to pay the balance consideration of Rs. 24,080.47 ps. with interest at 12 1/2 %

from the date of default i.e., 4-8-1983 and that vendors lien has to be created for the above saidamount. It is further pleaded that the plaintiff has to pay the costs to the defendant and that the suit

is liable to be dismissed with costs.

5. On the above said pleadings, the trial Court framed the following issues for trial:

1. Whether the plaintiff is always ready and willing to perform her part of the contract?

2. Whether the plaintiff is entitled to the relief of specific performance'7

3. Whether an amount of Rs. 30,000/-was paid by the plaintiff at the time of the agreement?

4. Whether the entire sale consideration was paid by the plaintiff to the defendant?

5. Whether the sale deed was signed by the defendant?

6. Whether the sale deed and other papers were deposited with Sri Hanumantha Rao and whether

they were taken away by the defendant?





7. Whether the account slip filed by the plaintiff into Court was actually prepared by the defendant?

8. To what equities the defendant is entitled to, in case a decree for specific performance is granted

in the suit?

9. To what relief?

6. During the trial, the plaintiff examined her father-in-law as PW-1 besides examining four more

witnesses as PWs.2 to 5 and exhibited nine documents as Exs.A-1 to A-9. On the other hand, the

defendant examined one witness as DW-1, but no documents were marked on his behalf.

7. Considering the entire evidence adduced on behalf of both sides, the learned Subordinate Judge

tried Issues 3 to 6 together and answered all the issues in favour of the defendant and against the

plaintiff. The learned Judge answered the Issue No. 7 in favour of the plaintiff and against the

defendant. So far as the Issues 1 and 2 are concerned, the learned Judge answered both the issues in

favour of the defendant and against the plaintiff. In view of the findings on the said issues, the

learned Judge negatived the relief of specific performance. Instead a decree is granted in favour of

the plaintiff against the defendant for a sum of Rs. 54,918.53 ps. being the sale price paid by her to

the defendant with interest thereon at 6% per annum from the date of decree till the date of

realization and further a lien is created over the plaint schedule property for the said amount in

favour of the plaintiff and directed the plaintiff to deliver the possession of the suit schedule land to

the defendant as and when the above said amount is paid by the defendant. The learned Judge

directed both parties to bear their own costs of the suit.

8. Aggrieved by the same, the plaintiff preferred the present appeal contending that the trial Court

failed to note that the defendant admitted substantially the case of the plaintiff in all respects exceptpayment of Rs. 30,000/- stating that only Rs. 11,000/-was paid as an advance. The trial Court failed

to note that PWs.2 and 3 with whom the defendant had no enmity stated about the payment of Rs.

30,000/- and also balance of Rs. 5,081.47 ps. and as against that evidence, the defendant has not

examined any witness to corroborate his evidence that he received only Rs. 11,000/- as advance and

that Rs. 24,000/- was due and that he did not sign the sale deed. The trial Court failed to note that

the defendant admitted his signatures in Exs.A-4 and A-5 being the Form 'F' register and Form No.

'E' maintained by PW-3 and the trial Court believed that the sale deed etc. were not with the

plaintiff. The trial Court should have seen that the evidence of plaintiff that Rs. 30,000/- was paid is

established and it is immaterial whether it was paid in lump sum or in installments. Unless the

amount of Rs. 30,000/- which was half of the price has been paid it was not natural to expect him to

deliver the possession of the property and if really Rs. 11,000/- was paid, he would not have

delivered the possession as by then the debts due to the society and bank were not yet discharged.

The trial Court failed to note that PW-1 gave report to the police against PW-3 and the defendant.

Whereas the defendant did not issue any notice even to the plaintiff stating the facts which took

place on 18-8-1983 and asking the plaintiff to get the sale deed executed and registered by paying

the balance of Rs. 24,000/- and odd. The trial Court failed to note that the defendant has filed the

suit against the plaintiff for injunction and withdrew the same as evident from Exs.A-8 and A-9. The

trial Court erred in disbelieving the payment of Rs. 5,081.47 ps. on 18-8-1983 on account of minor





discrepancies in the evidence of PWs. 1 to 3. The trial Court erred in not believing that the defendant

signed the sale deed on 18-8-1983 on the simple ground that the plaintiff kept quiet without taking

any steps for compulsory registration for a period of four months. The trial Court having disbelieved

that the balance amount of Rs. 24,000/- was due, ought to have found that the defendant executed

the sale deed. The trial Court failed to note that the defendant in his written statement stated that in

case the specific performance of agreement of sale is ordered, the plaintiff should be directed to pay

the balance of Rs. 24,000/- and odd. Having found that the balance was only Rs. 5,081.47 ps. as

contended by the plaintiff, the Court below erred in not decreeing specific performance subject to

payment of Rs. 5,081.47 ps., even if it is assumed that plaintiff failed to prove the payment of Rs.

5,081.47 ps. The trial Court erred in holding that the time is essence of the contract without any plea

or evidence adduced on behalf of the defendant. The trial Court failed to note that in case of

immovable property, time is presumed to be not of the essence of the contract, unless it is expressly

made so. The trial Court erred in dismissing the suit for specific performance and decreeing it only

for refund of Rs. 54,918.53 ps. instead of Rs. 63,600/- as prayed for by the plaintiff in the

alternative. It is further pleaded in the grounds of appeal that in any view the Court below erred in

directing the delivery of the possession of the suit land to the defendant upon payment of Rs.

54,918.53 ps. with interest at 6% per annum since there was neither plea nor evidence nor a

counter-claim by the defendant for such delivery of possession.

9. During the course of hearing, the earned Counsel for the appellant reiterated the contentions

raised in the grounds of appeal. He submitted that the trial Court accepted the entire case of the

plaintiff except the payment of Rs. 5,081.47 ps. said to have been made by the plaintiff to the

defendant on 18-8-1983 at the Sub-Registrar's Office though there is independent evidence of PWs.2

and 3 to the effect that the said amount was also paid and only after the payment, the defendant

signed in the sale deed drafted on that day on the instructions of both the plaintiffs father-in-law

and the defendant. Even otherwise the trial Court having disbelieved the evidence of DW-1 that theamount of Rs. 24,000/- was due, ought to have granted the decree for specific performance

directing the plaintiff to pay the said amount of Rs. 5,081.47 ps. with interest thereon. He further

submitted that equities are in favour of the plaintiff. Even according to the trial Court the plaintiff

paid about Rs. 55,000/- out of Rs. 60,000/-and also purchased the stamps worth Rs. 3,600/- on

18-8-1983 and got the sale deed also drafted on the stamps and further the plaintiff was put in

possession on 15-6-1983 and continued to be in possession and enjoyment of the same. Further the

plaintiff purchased the neighbouring lands of the brothers of the defendant. Further the defendant

in the written statement pleaded that in the event of granting decree for specific performance, the

plaintiff may be directed to pay Rs. 24,000/- and odd which according to him was the balance which

was no t acc epted by the tri al Co urt . The ear ned Cou ns el submitt ed th at taki ng all tho se

circumstances into consideration, the trial Court ought to have granted decree for specific

performance directing the plaintiff to pay the alleged balance of Rs. 5,081.47 ps. with interest

thereon. He further submitted that at any rate of denying the relief of specific performance, the

Court cannot grant a decree in favour of the defendant directing the plaintiff to deliver possession to

the defendant though there is no counter-claim for recovery of possession. He further submitted

that by the date of decree the suit for recovery of possession was also barred. Hence, at any rate, the

trial Court grossly erred in directing the plaintiff to deliver the possession to the defendant after

return of the amount of Rs. 54,918.53 ps. and hence at least the said portion of the decree is liable to





be set aside.

10. In support of his contention that in a suit filed by the plaintiff for specific performance of

agreement of sale, decree for recovery of possession cannot be granted in favour of the defendant.

He relied upon a decision of the Apex Court in Smt. Thakamma Mathew v. M. Azamathulla Khan

and Ors. , wherein the Full Bench of the Apex Court held that in a suit filed for cancellation of

agreement of sale and for recovery of possession of the property by the vendor, the purchaser is not

entitled to obtain a decree for specific performance of the contract even if it is found that the vendor

is not entitled to succeed in the suit filed by him for cancellation of the agreement and for recovery

of the possession. The Apex Court in the said decision observed that on refusal of the vendor to

perform his part of contract and upon the purchaser to have filed a suit for specific performance of

the contract within a period of three years from the date of the notice of cancelling agreement and if

such a suit had been filed by him, it would have been open to the seller to show that it was barred by

the provision contained in Section 16 of the Specific Relief Act and the purchaser did not choose to

adopt that course and remained content with defending the suit filed by the seller for cancellation of

the agreement to sell and for recovery of the possession of the property and even if it is found that

the seller was not entitled to succeed in the said suit and the said suit is liable to be dismissed, it

would not entitle the purchaser to obtain a decree for specific performance of the contract in those

proceedings and the Court could not invoke its discretionary power under Order 7 Rule 7, C.P.C., to

grant a relief to the purchaser, of a decree for specific performance of the agreement to sell in his

favour in the suit filed by the seller since the period of limitation prescribed for filing a suit for

specific performance had long expired and the conditions which are required to be fulfilled by a

person seeking a decree for specific performance of the contract under Section 16 of the Specific

Relief Act were not satisfied. Relying on the above said observations of the Apex Court, the earned

Counsel for the appellant contended that though the facts are not similar in the instant case, the

same analogy is to be applied in this case as by the date of the decree the suit for recovery of possession by the defendant from the plaintiff was barred by time.

11. The earned Counsel also relied on a decision of the Apex Court in Prakash Chandra v. Angadlal

and Ors. , wherein it is observed that the ordinary rule is that specific performance should be

granted and it ought to be denied only when equitable considerations point to its refusal and the

circumstances show that damages would constitute an adequate relief.

12. The earned Counsel also relied on another decision in K. Ramulamma v. K. Ramaiah Chetty 1982

(1) APLJ 55 (SN), wherein it is held that payment of major portion of consideration by the purchaser

under the agreement was also put in possession of the property pursuant to the agreement of

conveyance, if the vendor evades to execute the registered sale deed, the purchaser is entitled to a

decree for specific performance. It is further held therein that in certain situations mere false plea

may not be sufficient to disentitle the plaintiff from having a specific performance but the prejudice

caused thereby also must be shown. In that case out of total sale consideration of Rs. 800/-, an

amount of Rs. 600/- was paid and the purchaser was put in possession of the property. There was a

dispute regarding the payment of Rs. 100/- and the trial Court and the first appellate Court

disbelieved the payment of Rs. 100/- set up by the purchaser and on that ground denied the relief of

specific performance. But, this Court held that it may not be a circumstance for negating the relief to





the plaintiff and the sum of Rs. 100/- set up by him has not been believed by the Courts below and

the sum of Rs. 100/- does not constitute a major portion in the consideration amount and further no

substantial prejudice is caused to the defendants thereby. Placing reliance on the said decision, the

earned Counsel for the plaintiff contended that in the instant case out of Rs. 60,000/-, an amount of

Rs. 55,000/- has been paid and accepted by the trial Court but only the payment of Rs. 5,000/- and

odd is not believed by the trial Court and on account of such non-payment, no prejudice has been

caused to the defendant and therefore on the same analogy of the said cited decision, the trial Court

ought to have granted decree for specific performance.

13. The earned Counsel further relied upon a decision in Gobind Ram v. Gian Chand , wherein the

Apex Court granted a decree for specific performance by directing the purchaser to pay further

amount to the seller over and above the agreed sale consideration.

14. The earned Counsel further relied upon a decision of the Apex Court in Messrs. Trojan and Co. v.

RM. N.N. Nagappa Chettiar , wherein it is held that the decision of a case cannot be based on

grounds outside the pleadings of the parties and it is the case pleaded that has to be found and

without an amendment of the plaint, the plaintiff is not entitled to grant the relief not asked for, in

support of his contention that without there being a counter-claim made by the defendant in the

written statement for recovery of possession, the Court cannot grant a decree for recovery of

possession against the plaintiff. The earned Counsel submitted that the judgment of the trial Court

is to be set aside and that the decree for specific performance is to be granted in favour of the

plaintiff as prayed for.

15. On the other hand, the earned Counsel for the respondent-defendant contended that the plaintiff

has not come to the Court with clean hands and therefore he is not entitled for equitable relief of

specific performance and further there is no pleading in the plaint to the effect that the plaintiff wasalways ready and willing to perform her part of contract and in spite of demand by plaintiff for

registration of the sale deed, the defendant did not come forward. In this regard the earned Counsel

for the defendant invited the attention of this Court to Form Nos. 47 and 48 which are prescribed for

the pleadings in the suit filed for specific performance of the agreement of sale and contended that

those forms are mandatory and that the present plaint is not in accordance with the said forms

prescribed as there is no pleading to the effect that she has always been ready and willing to perform

her part of the contract and demanded the execution and registration of the sale deed. He further

submitted that there is also no pleading to the effect that in the event of Court finding that there is

some more balance, the plaintiff is prepared to pay and take the sale deed. He further submitted that

the plaintiff did not get into the box to give evidence and therefore a presumption is to be drawn

against the plaintiff under Section 114 of the Indian Evidence Act. He further submitted that as per

the plaint itself, time is the essence of the contract and the date of agreement is 18-6-1983 and the

date fixed for payment of balance and for execution of sale deed is on or before 4-8-1983 and that

admittedly within the period the plaintiff has not paid the balance sale consideration and also did

not express her readiness and willingness to pay the balance amount and take the sale deed within

that prescribed time and that even on 25-8-1983 the plaintiff did not pay the balance and instead

took a false plea of payment of entire balance. Therefore, the plaintiff is not entitled to equitable

relief of specific performance. He submitted that the trial Court rightly refused to grant the equitable





relief of specific performance on the ground that the plaintiff did not approach the Court with clean

hands. The earned Counsel further submitted that the plaintiff did not file the agreement of sale and

the alleged draft sale deed deliberately as the said documents would disclose the true facts and

further the plaintiff did not choose to get into the box to state on oath about the averments pleaded

in the plaint and therefore an adverse inference has to be drawn under Section 114 of the Indian

Evidence Act. In support of his contentions, the earned Counsel relied upon the following decisions:

(1) Indian Bank, Chittoor v. V.R. Venkataraman and Ors. , wherein it is held that presumption under

Section 114 of the Indian Evidence Act has to be drawn against a party who did not enter the witness

box to prove the case set up by him and that the party in possession of documents does not produce

originals, adverse inference can be drawn for suppression of documents.

(2) Nalamathu Venkayya (died) per LR v. B.S. Neelkanta and Anr. 2005 (6) ALD 585 (DB), wherein

it is held that mere oral assertion by the purchaser is not sufficient to say that he was ready and

willing to pay the amount of sale consideration as agreed and that the plea must be supported by

proof.

(3) Achal Reddi v. Ramakrishna Reddiar and Ors. AIR 1990 SC 553, wherein it is held that the

purchaser who is put in possession of the property in pursuance of contract cannot plead adverse

possession and as his possession is only in pursuance of the contract of sale and not adverse to the

interests of the admitted owner.

(4) A.C. Arulappan v. Ahalya Naik 2001 (5) ALD 90 (SC), wherein it is held that the Court can refuse

to grant the relief of specific performance if it is unjust and unequitable to grant the same.

(5) Moparthi Sarojini Devi v. V. Kavuru Ramchandra Prasad and Ors. 2002 (3) ALD 253, wherein itis held that when the vendee was not ready and willing to perform his part of the contract, he cannot

avail the defence of part performance.

(6) Lourdumari David and Ors. v. Louis Chinnaya Arogiasivamy and Ors. , wherein it is held that

equitable relief of decree for specific performance could not be granted in favour of the plaintiff who

has not approached the Court with clean hands.

(7) Ousephvarghese v. Joseph Aley and Ors. , wherein it is held 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.

(8) Mohan Lal (Deceased) Through his LRs Kachru and Ors. v. Mira Abdul Gaffar and Anr. AIR

1996 SC 910 : 1996 (2) ALD (SCSN) 7, wherein it is held that party in possession of suit land

pursuant to agreement of sale, he cannot plead title by adverse possession and that the plaintiff who

entered into the possession in pursuance of the agreement of sale who filed the suit for specific

performance of the said agreement of sale is not entitled to retain the possession of the land even

after the suit filed by him for specific performance is dismissed and the said dismissal has become

final.





(9) N.P. Thirugnanam (D) by LRs. v. Dr. R. Jagan Mohan Rao and Ors. , wherein it is held that the

finding that the plaintiff was not ready and willing to perform his part of contract is not entitled for

specific performance of contract.

(10) Jugraj Singh and Anr. v. Labh Singh and Ors. AIR 1995 SC 945, wherein it is held that in a suit

for specific performance, the plaintiff shall plead continuous readiness and willingness at all stages

from date of agreement till date of hearing of suit and also prove the same.

(11) In support of his contention that in a suit for specific performance plaint shall be in Form No.

47, the earned Counsel relied upon a decision of the Allahabad High Court in Rajendra Prasad Rai

and Anr. v. Rajdeva Rai and Anr. , wherein it is held that in a suit for specific performance if the

plaintiff failed to aver that he was ready and willing to perform his part of the contract as required

by Section 16(c) of the Specific Relief Act and as mentioned in Form 47 of Schedule I of the Civil

Procedure Code, the plaintiff is not entitled for specific performance.

(12) Kommisetti Venkaiasubbayya v. Karamsetti Venkatesiuarlu and Ors. , wherein His Lordship

Justice Madhava Reddy (as he then was) held that where the plaintiff asserts that he has paid Rs.

1,500/- to the defendant and is willing to pay the balance of Rs. 272/- to him but he had not paid the

sum of Rs. 1,500/- to the defendant, the plaintiff is disentitled to the discretionary relief of specific

performance not only on the ground that has set up a false plea but also that he was not ready and

willing to perform his part of the contract.

(13) In K.S. Vidyanadam and Ors. v. Vairavan , wherein the Apex Court held that when certain time

limit is prescribed in the agreement of sale for taking steps by one or other party, may not amount to

making time the essence of contract but must have some significance and it cannot be ignored

altogether by Court and that total inaction on the part of purchaser for 21/2 years in violation of terms of agreement, it would be inequitable to give relief of specific performance to purchaser.

(14) In Saraswathi Animal v. V.C. Lingam and Anr. VIII-1993 (2) Current Civil Cases 726, wherein a

specific performance was refused on the ground that mere use of words that he was ready and

willing to perform his part is not sufficient without proof to the effect that the purchaser was having

sufficient funds to make the payment.

16. During the course of reply, the earned Counsel for the appellant submitted that the dispute was

mainly whether Rs. 24,000/- was due or Rs. 5,081.47 ps. was due by 18-8-1983 and that the trial

Court found only Rs. 5,081.47 ps. was due by 18-8-1983 and the said finding of the trial Court has

become final as no cross-appeal has been filed and that the said balance is to be paid only at the time

of registration and that as the registration did not take place, it cannot be said that the plaintiff

committed default in payment of the amount. He further submitted that in the plaint itself the

plaintiff pleaded that it was PW-1 who arranged the transaction and it was PW-1 who paid the

amounts to the defendant and who took the defendant to the Registrar's Office and therefore the

plaintiff examined PW-1 and under those circumstances, the non-examination of the plaintiff does

not disentitle the plaintiff for a decree for specific performance and that the contention of the

defendant in this regard is not tenable.





17. The points that arise for consideration in this appeal are:

(1) Whether the appellant-plaintiff succeeded to prove that the defendant paid Rs. 54,918.53 ps.

prior to 18-8-1983 and further balance of Rs. 5,081.47 ps. was paid on 18-8-1983 and thus paid

entire sale consideration of Rs. 60,000/- to the plaintiff?

(2) Whether the plaintiff succeeded to prove that the defendant signed in the sale deed drafted by

PW-3 on 18-8-1983?

(3) Whether the draft sale deed containing the signature of defendant had been entrusted to PW-2

on 19-8-1983 as the sale deed could not be registered on that day?

(4) Whether the version of the plaintiff that the defendant took away the said sale deed and also the

agreement of sale and other forms required for registration from PW-2 Chamarthi Hanumatha Rao

on the pretext of showing those documents to his brother and failed to return the same later is true?

(5) Whether the plaintiff was always ready and willing to perform her part of the contract?

(6) Whether the plaintiff is entitled for decree of specific performance even if it is found that entire

sale consideration was not paid?

(7) Whether the trial Court erred in refusing to grant decree for specific performance?

(8) Whether the trial Court erred in directing the defendant to return only Rs. 54,918.53 ps. instead

of Rs. 63,600/- as claimed by way of alternative relief in the plaint?

(9) Whether the trial Court erred in giving direction to the plaintiff to deliver possession of the

plaint schedule lands to the defendant after payment of Rs. 54,000/- and odd while granting

alternate relief in favour of the plaintiff?

(10) Whether the judgment and decree passed by the trial Court are sustainable in law?

(11) To what relief?

Point No. 1:

18. According to the plaintiff the entire transaction was looked after by her father-in-law and her

father-in-law paid the amounts to the defendant. Therefore, the plaintiff examined her father-in-law

as PW-1. PW-1 in his evidence stated that he discharged the loan due to the society and also to the

Bank of India prior to 18-8-1983 and that by 18-8-1983 he was only due Rs. 5,081.47 ps. towards

balance of sale consideration and that on 18-8-1983 at the time of drafting the sale deed the

defendant in his own handwriting gave the slip containing payments received by him and also the

balance due and the said slip is Ex.A-3. PW-2 Chamarthi Venkata Hanumantha Rao the then Village

Karanam of Gopavaram stated that he was present at the time of drafting the sale deed by his





brother PW-3 and that a sum of Rs. 5,000/-was paid by PW-2 to the defendant at that time. Again

he stated that he does not remember to whom that amount of Rs. 5,000/-was paid. PW-3 Chamarthi

Venkata Subba Rao, V.A.O. of Nidadavole who drafted the sale deed did not state about the payment

of Rs. 5,000/- to the defendant in the chief-examination. During cross-examination a suggestion

was put to him that Rs. 5,000/- was not paid on the date of sale deed. The said suggestion was

denied. PWs.4 and 5 did not speak about the payment of the amount and they only stated about the

possession of the plaintiff over the suit land, which is not in dispute. Therefore, the only evidence

available for the plaintiff for determination of this point is the evidence of PWs. 1 and 2 and Exs.A-3.

As against the same, there is no evidence other than the evidence of the defendant himself. The

defendant admitted that the plaintiff paid the amount of Rs. 17,215.53 ps. in August, 1983 to Bank of

India, Pasivedala towards discharge of his loan and further paid Rs. 7,703/- to the Primary

Agricultural Co-operative Society, Dharmavaram towards discharge of his loan. But, he stated that

he did not receive Rs. 30,000/- but he only received Rs. 11,000/- and thus in all he received only Rs.

35,918.53 ps. and an amount of Rs. 24,081.47 ps. is still due by 18-8-1983. The defendant denied his

handwriting in the account slip Ex.A-3. The learned Judge believed the evidence of PW-1 only to the

extent of payment of Rs. 54,918.53 ps. prior to 18-8-1983, but disbelieved the evidence of PW-2

regarding the alleged payment of Rs. 5,081.47 ps. on 18-8-1983. The learned Judge believed that

Ex.A-3 slip was written by the defendant himself and in that slip it is clearly stated that he received

Rs. 54,918.53 ps. by 18-8-1983 and the balance due was only Rs. 5,081.47 ps. He disbelieved the

evidence of defendant that the amount due by 18-8-1983 was Rs. 24,081.47 ps. The learned Judge

found that the balance due was Rs. 5,081.47 ps. by 18-8-1983. The learned Judge gave sound

reasons for believing the account slip Ex.A-3 and also for not believing the evidence of PWs. 1 and 2

regarding the payment of Rs. 5,081.47 ps. on 18-8-1983. I entirely agree with the reasons given by

the learned Judge in this regard. Because the evidence of PWs. 1 and 2 is not consistent regarding

the payment of Rs. 5,081.48 ps. on 18-8-1983. In fact, PW-1 did not state that he paid the said

amount to the defendant. P.W. 2 did not state that PW-1 paid the amount to him and he in turn paidthe same to the defendant. On the other hand, he stated that a sum of Rs. 5,000/-was paid by PW-1

to the defendant at the time of drafting the sale deed. But, again he stated that he does not know

how that amount of Rs. 5,000/- was paid to the defendant. Therefore, the learned Judge rightly held

that the plaintiff failed to prove the payment of Rs. 5,081.47 ps. on 18-8-1983 to the defendant.

Regarding the payment of Rs. 30,000/- besides discharging the amounts due to the Bank of India

and Society, PW-1 the father-in-law of the plaintiff stated that he paid Rs. 30,000/- in piecemeal to

the defendant by the date of execution of the agreement. PW-2 the scribe of the agreement also

stated that Rs. 30,000/- was paid towards earnest money to the defendant. Their evidence is amply

corroborated by the recitals of the account slip Ex.A-3 wherein the calculations are made. As seen

from the said calculation chit, the amounts received on four occasions totalling Rs. 30,000/- is

written and totalled as Rs. 30,000/- and thereafter the amount paid towards Society loan is

mentioned as Rs. 7,703/- and also the amount paid to the bank is noted as Rs. 17,215.53 ps. and

then again total was arrived at Rs. 54,918.53 ps. Thereafter, the amount due is written as Rs.

60,000/- and from that the amount already paid sum of Rs. 54,918.53 ps. is deducted and the

balance still due is arrived at Rs. 5,081.47 ps. At the top of the chit, it is noted as D. Ramachandra

Rao who is the defendant herein. It is the case of the plaintiff that the said slip is in the handwriting

of the defendant. Of course, the defendant denied his handwriting. During the course of trial, the

learned Judge made DW-1 the defendant to write the same slip in the open Court and it is marked as





Ex.A-7. After comparing the handwriting in Ex.A-3 and Ex.A-7, the learned Judge found that Ex.A-3

is in the handwriting of the defendant and he deliberately tried to misguide the Court by writing in a

different manner in the open Court. The learned Judge further found that the defendant could not

conceal the characteristics of his handwriting and that the comparison clearly discloses that Ex.A-3

is in the handwriting of defendant. I entirely agree with the view expressed by the learned trial

Judge in this regard. I have also gone through both Exs.A-3 and A-7 and found that it was the

defendant who wrote the slip Ex.A-3. According to the defendant the said document Ex.A-3 is forged

one. If really the said slip Ex.A-3 is forged one, there was no need for them to write four different

amounts to make up the total of Rs. 30,000/- as the case of the plaintiff is that she paid Rs.

30,000/- on the date of agreement of sale. If it is a forged document, they should have written as Rs.

30,000/- paid as on the date of the agreement. In fact, the dates are not mentioned in Ex.A-3 and if

it is a forged one, the dates should have found place. Therefore, I am not inclined to believe the

self-serving testimony of the defendant that Ex.A-3 is not in his handwriting and it is a forged one. I

entirely agree with the learned Judge that defendant himself wrote Ex.A-3 and the contents therein

are true. So the contents of Ex.A-3 amply corroborate the evidence of PW-1 that the total amount

paid prior to 18-8-1983 is Rs. 54,918.47 ps. and the amount due was only Rs. 5,081.47 ps. and not

Rs. 24,081.47 ps. Thus, this point is held accordingly.

Point Nos. 2 to 4:

19. PW-1 stated that after he paid Rs. 5,081.47 ps. due to the defendant at the time of drafting sale

deed, the defendant signed in the sale deed as well as in the mutation forms. PW-2 the then Village

Karanam of Gopavaram also stated that the defendant signed in the sale deed as well as in the

mutation forms. PW-3 the document writer who drafted the sale deed for the plaintiff stated that he

used to write the documents and that he maintains the register for documents drafted by him and

that he also maintains a receipt book for the fees received by him for drafting the documents andhandover the same in the Office of Registrar and that he obtained the signature of the defendant in

his document register as well as in the receipt book after the defendant put his signature in the sale

deed and that afterwards he handed over the sale deed to PW-2 at the request of both parties.

According to PWs. 1 to 3, the document could not be registered as the defendant demanded Rs.

358/- towards the expenditure incurred by him for raising the crop prior to his handing over the

possession of the land to the plaintiff in pursuance of the agreement of sale. As against their

evidence, the defendant admitted about PW-1 taking him to the Registrar's Office stating that the

defendant has to execute the sale deed after receiving the balance sale consideration and also

admitted drafting of the sale deed by PW-3 and also signing in the document register and also in the

mutation forms. But, he denied having signed in the sale deed. According to him as the balance of

Rs. 24,000/- was not paid to him on that day, as promised, he did not sign in the sale deed though

he signed on all other forms and had instructed PW-3 to draft the sale deed on stamps worth Rs.

3,600/-. According to him PW-1 represented to him that his son went to Mukkamala, his

father-in-law's place to get the amount and he would get it by evening before the registration of the

document and therefore he instructed the document writer to write the document and he signed in

the register maintained by the document writer and also in the mutation forms, but, subsequently as

the son of PW-1 did not turn up and no amount was paid to him, he refused to sign in the sale deed.

The evidence of the defendant that he did not sign in the sale deed as the balance sale consideration





was not paid is improbable to believe as generally the balance amount will be paid only at the time

of registration of the document and admittedly that stage had not yet reached. The defendant having

signed in the register maintained by the document writer and also in 'E' Form and 'F' Form and

having instructed the document writer to draft the sale deed, must have necessarily signed in the

draft sale deed with the hope of receiving the balance sale consideration at the time of registration of

the document or before presentation of the document for registration. The learned Judge did not

believe the evidence of PWs. 1 to 3 that the defendant signed in the sale deed. The reason given by

the trial Judge is that according to the plaintiff the sale deed which was signed by the defendant

along with the mutation forms was available with PW-2 for more than three months and PW-2 is the

classmate of the plaintiff and therefore if really the document was signed by the defendant, the

plaintiff and PW-1 would not have failed to take steps for compulsorily registration of the document.

But, the learned Judge failed to note that the document was not with PW-1 and it was entrusted to

PW-2 on account of disputes between PW-1 and the defendant in respect of the amount of Rs. 358/-

demanded by the defendant towards the expenses incurred for the purpose of raising the crop in the

lands for which PW-1 refused to pay. The account slip Ex.A-2 in which the defendant wrote the

expenses totalling Rs. 358/- supports the evidence of PWs. 1 to 3 that the defendant demanded Rs.

358/-and odd. The learned Judge believed that Ex.A-2 is in the handwriting of defendant after

comparison of the similar writing Ex. A-8 made by the defendant in the open Court. Of course, the

defendant denied having written Ex.A-2 also. The learned Judge rejected the same for sound

reasons. If really there was no demand made by the defendant in respect of the cultivation expenses,

there was no need for him to write such a slip Ex.A-2 and hand it over to PW-1. The defendant wrote

the said slip on 5-6-1983. On the reverse of it, the amount of Rs. 358/- found in that slip was added

to Rs. 5,041.47 ps. and arrived at total of Rs. 5,439.47 ps. Obviously this calculation on the reverse of

Ex.A-2 slip was made on 18-8-1983 at the time of drafting the sale deed. So the slip Ex.A-2 and the

calculations made on the reverse of Ex.A-2 would amply supports the evidence of PWs. 1 to 3 that

the defendant demanded Rs. 5,439.47 ps. though the balance sale consideration was only Rs.5,081.47 ps. Further the defendant admitted that he has no enmity with PWs.2 and 3. PW-2 is no

other than the Village Karanam and PW-3 is the Village Administrative Officer and both of them are

brothers. I do not find any reason to disbelieve their evidence that the defendant put his signature in

the sale deed drafted by PW-3. In view of the fact that the defendant signed in the register

maintained by PW-3 and also in the mutation forms, it is more probable that the defendant must

have signed in the sale deed and thereafter he refused to get that document registered on account of

the dispute regarding the expenses or some other disputes which both parties do not want to

disclose. The learned Judge disbelieved the very presence of PW-2 on 18-8-1983 a t the

Sub-Registrar's Office for the reason that he was not the scribe of the sale deed. The learned Judge

commented that PW-2 is the classmate of PW-i and therefore his evidence cannot be believed. But,

the learned Judge failed to note that the defendant himself stated that he has no enmity with PW-2.

Merely because PW-1 is the classmate of PW-2, it cannot be said that PW-2 gave false evidence on

oath. He is no other than the Village Karanam, a respectable person. PW-2 stated that the villagers

used to come to him in respect of the sale transactions and as he has no licence to write the

document, he got it scribed by PW-3, his brother. Therefore, in my considered view, the learned

Judge erred in disbelieving the presence of PW-2. Further if really the defendant did not sign in the

sale deed, there was no need for the plaintiff to plead in the suit for specific performance of an

agreement of sale and to adduce evidence to the effect that the defendant signed in the sale deed. If





it is a suit for mere direction to present the document before the Sub-Registrar for registration, it

can be said that the plaintiff had to plead and prove that the defendant signed in the sale deed. As

seen from the prayer in the plaint, the plaintiff sought for specific performance of contract of sale

directing the defendant to execute the sale deed. Therefore, there was no need to plead and adduce

evidence to the effect that he signed in the draft sale deed, if the defendant did not really sign in the

sale deed drafted by PW-3.

20. The case of the plaintiff is that the defendant took away the sale deed along with the agreement

of sale and other forms in which the defendant signed while those documents were in the custody of

PW-2 on the pretext of showing the documents to his brother and failed to return the same. If this

version is true, this circumstance also lends corroboration to the evidence of PWs. 1 to 3 that the

defendant signed in the sale deed. Because, if really the defendant did not sign in the sale deed,

there was no need for him to take away that sale deed and also the agreement of sale from PW-2 on

false pretext. Of course, the learned Judge did not believe the version of the plaintiff in this regard.

The reason given by the learned Judge is that though PW-2 and also PW-1 said to have given reports

against the defendant to the police after the defendant took. away the documents from PW-2, they

did not choose to summon those police reports. The learned Judge observed that nobody was

examined to show that the defendant had taken away the sale deed and also agreement of sale from

PW-2 and that the evidence of PW-2 about the defendant taking away the document is

contradictory, and the very entrustment of the same to PW-2 on 18-8-1983 is unnatural. The

learned Judge did not elaborate as to how the evidence of PW-2 about defendant taking away the

document is contradictory. PW-2 categorically stated that the defendant took away the sale deed and

the documents on the pretext that he wanted to show them to his brother on 18-8-1983. Regarding

the entrustment of documents, PW-3 who scribed the sale deed stated that he entrusted the sale

deed to PW-2 at the request of both parties on 18-8-1983. There is absolutely no evidence adduced

on behalf of the defendant to discard the sworn testimony of PWs.2 and 3 who have no enmity against the defendant. Merely because the police reports are not summoned, it cannot be said that

the oral evidence of PWs. 1 and 2 cannot be believed. Especially when PW-2 who has no enmity

against the defendant and an independent witness holding the post of Village Karanam, his evidence

cannot be brushed aside in the absence of contra evidence. Merely because he was classmate of

PW-1, he cannot be expected to speak falsehood to help PW-1 against the defendant with whom he

has no enmity. As PW-? is Village Karanam, he has to treat all the villagers equally. The very fact

that he did not handover the documents to PW-1 indicates that he does not want to handover the

documents to PW-1 before settlement of the dispute between the defendant and PW-1 which shows

that he is an independent witness. The learned Judge failed to consider the probabilities before

rejecting the evidence of PW.2 that the defendant took away the documents. If really the defendant

did not take away the documents, the documents should be available with PW-1 or with the plaintiff.

If they are in possession, there is absolutely no reason for them not to file the agreement of sale and

also the draft sale deed even if it is not signed by the defendant along with the plaint. Filing of a suit

for specific performance without an agreement of sale is a risky affair for the plaintiff. The

contention of the defendant is that the agreement of sale is suppressed for the reason that if it is

filed, it would disclose the balance due was Rs. 24,000/-and odd. The version of the balance of Rs.

24,000/- is already disbelieved by the trial Court. Further, it is not the case of the defendant that the

further payments are noted in the agreement of sale. The version of the defendant is falsified by the





slip Ex.A-3. The learned Judge having found that the theory of balance of Rs. 24,000/- set up by the

defendant is not true, erred in observing that the documents are with the plaintiff and those

documents are not taken away by the defendant.

21. The learned Judge failed to note another important circumstance, which clinchingly supports the

version of the plaintiff that the documents were taken away by the defendant.

22. As seen from Ex.A-8 the certified copy of the plaint in O.S. No. 23 of 1984 on the file of the

District Munsif, Kowur the defendant herein filed the suit for permanent injunction against the

present plaintiff and PW-1 in respect of the present plaint schedule property alleging that the

present plaintiff and her husband without any manner of right whatsoever are illegally trying to

interfere with the possession and enjoyment of the plaint schedule property and hence he is entitled

for injunction against the present plaintiff, her husband and PW-1 who are the Defendants 1 to 3

therein. The said suit was filed on 23-1-1984. In the said suit the present defendant who is the

plaintiff therein suppressed the very execution of the agreement of sale and about receipt of

admitted amount towards sale consideration. If really the agreement of sale and the draft sale deed

and also the 'E' and 'F' Forms containing the signatures of the defendant were with the plaintiff or

PW-1, the defendant would not have ventured to suppress the fact of his entering into agreement of

sale with the present plaintiff. As the original agreement of sale and the draft sale deed and also the

'E' and 'F' Forms were with the defendant, the defendant could suppress the same in the plaint filed

by him, otherwise he would not have ventured to suppress the fact in the plaint filed by him. But,

when the present suit was filed on 1-2-1984 i.e., 9 days thereafter and when the present plaintiff

filed the Photostat copies of 'E' and 'F' Forms along with the plaint, the defendant had to admit

about the execution of agreement of sale and receiving part consideration etc., in the written

statement filed on 9-7-1984 and on the very same day the present defendant filed memo in the suit

filed by him in O.S. No. 23 of 1984 stating that the suit is adjusted out of the Court and it is to bedismissed as adjusted out of the Court and got the suit filed by him dismissed. So this conduct of the

defendant in suppressing the admitted transaction between the present plaintiff and the defendant

in respect of the very same plaint schedule property in the plaint filed in O.S. No. 6 of 1984 clearly

indicates that it was the defendant who is in possession of the agreement of sale, draft sale deed, and

the original 'E' and 'F' Forms. As already observed supra, that if those documents are with the

plaintiff, there was no need for them to suppress the same as the suppression would be against their

own interest in a suit filed for specific performance. The learned Judge failed to note this important

circumstance in order to decide the point whether the defendant took away the documents. The

probabilities are in favour of the plaintiff and not in favour of defendant and in fact the probabilities

are against the defendant. Therefore, in my considered view, it can be safely concluded that the

defendant took away the documents from the custody of PW-2 as stated by PWs. 1 and 2 and failed

to return the same, obviously with a view to deny the very transaction of agreement of sale. Thus,

these points are held accordingly.

Point Nos. 5, 6 and 7:

23. In the plaint the plaintiff narrated the facts relating to execution of agreement, going to the

Sub-Registrar's Office, purchasing of stamps worth Rs. 3,600/- and drafting of the sale deed etc.





After narrating the said facts in Para 8 it is stated that the above narrated facts clearly reveal that the

plaintiff has always been ready and willing to perform her part of the contract and that she

performed her part of the contract and that it is the defendant who committed breach of contract

and also offences punishable under Indian Penal Code with a view to make wrongful gain if possible.

It is further pleaded that the plaintiff made improvements to the land by spending lot of amount and

is entitled for specific performance and the defendant who committed offence is not entitled to any

equities. In view of the said pleadings, I am unable to accept the contention of the earned Counsel

for the defendant that the plaint in the suit is not in accordance with the Forms 47 and 48 and that

there is no pleading to the effect that the plaintiff has always been willing and ready to perform her

part of contract and demanded for the execution and registration of the sale deed. All the

ingredients mentioned in Form Nos. 47 and 48 are found in the present plaint. It is specifically

pleaded in the plaint that the defendant agreed to sell plaint schedule property and entered into an

agreement of sale agreeing to execute the sale deed on receipt of the balance sale consideration. It is

also specifically pleaded that the plaintiff has been and still ready and willing to take the sale deed

and that it was the defendant who refused to present sale deed for registration on account of PW-l's

refusal to pay the cultivation expenses which the plaintiff is not liable to pay. The sum and substance

of both the forms is found in the present plaint. In Rajendra Prasad Rai's case (supra), relied on by

the defendant in this regard is not helpful to the case of the defendant. In the cited case, the

Allahabad High Court on the question of fact found that the plaintiff failed to aver that he was readv

and willing to perform his part of the contract as required under Section 16(c) of the Specific Relief

Act as mentioned in Form 47 of Schedule I of C.P.C., and on such facts it was held that the plaintiff

is not entitled for specific performance. But, here in the present plaint it is specifically pleaded that

she has always been ready and willing to perform her part of contract and in fact the plaintiffs

father-in-law took the defendant to Sub-Registrar's Office, purchased stamps worth Rs. 3,600/- and

got the sale deed drafted and also got the defendant signed in 'F' and 'E' Forms and also in the sale

deed. The only act that remained was only presentation of the document before the Sub-Registrarfor registration. Therefore, it cannot be said that there is no pleading to the effect that the plaintiff

was always ready and willing to perform her part of contract. The other decisions relied on by the

defendant in this regard are also not applicable to the facts of this case as the facts of the present

case are entirely different from the facts of the cited case. This is a case where the plaintiff took the

defendant to the Sub-Registrar's Office and got the sale deed drafted and signed by the defendant on

stamp papers and the remaining act has to be performed only by the defendant and not by the

plaintiff. Of course, the contention of the defendant is that the plaintiff did not pay entire

consideration. As already found supra that the plaintiff was due Rs. 5,081.47 ps. The said amount is

expected to be paid only at the time of registration of the document before the Sub-Registrar's

Office. It is not the case of the defendant that he went to the Sub-Registrar's Office for registration of

the document and the plaintiff refused to pay the balance and therefore he refused for registration of

the sale deed. Therefore, it cannot be said that the plaintiff has not been ready and willing to

perform her part of contract. The other contention of the defendant is that it is not pleaded in the

plaint that she is ready and willing to take the sale deed even if it is found that still an amount of Rs.

5,081.47 ps., is to be paid to the defendant towards balance sale consideration and on the other

hand, the plaintiff pleaded that the entire amount has been paid and demanded only for registration

without paying any further amount and therefore it does not amount to readiness or willingness on

the part of the plaintiff. I am unable to agree with this contention. In fact, according to PW-1, the





father-in-law of the plaintiff paid the amount to PW-2 to be paid to the defendant at the time of

registration. Of course, it is found supra that the said amount did not reach the defendant.

Therefore, it has to be held that still there is balance of Rs. 5,081.47 ps. to be paid to the defendant

by the plaintiff. Under those circumstances, it cannot be said that the plaintiff made a false plea in

the plaint regarding the payment of entire sale consideration and the said conduct of the plaintiff

disentitles her from seeking specific performance of agreement of sale. In K. Ramulamma s case

(supra), this Court held that in all situations mere false plea may not be sufficient to disentitle the

plaintiff from seeking a specific performance and that only in certain situations where the vendor

has shown that prejudice would be caused if specific performance of agreement is granted, the relief

of specific performance can be refused and not in all cases. In that case the total consideration was

Rs. 800/-and out of which Rs. 600/- was paid and the purchaser was put in possession of the

property and there was a dispute regarding the payment of Rs. 100/- and the trial Court and the

appellate Courts disbelieved the payment of Rs. 100/- pleaded by the purchaser and on that ground

both the Courts denied the relief of specific performance. But, this Court held that the false plea of

payment of Rs. 100/- taken by the plaintiff in that case is not a circumstance for negating the relief

to the plaintiff and that the said payment does not constitute a major portion in the consideration

amount and further no substantial prejudice is caused to the defendants thereby. Here in the instant

case also out of Rs. 60,000/-, payment of about Rs. 55,000/- is proved and the plaintiff failed to

prove the payment of only Rs. 5,000/- and odd which comes to only 1/12th of it. Admittedly the

possession was also delivered to the plaintiff on the date of the agreement itself. In the cited case,

the false plea was in respect of 1/8th of the sale consideration amount. Here in the instant case, the

alleged false plea is only in respect of 1/12th of the sale consideration amount. Therefore, the facts of

this case stand on much better footing than the facts of the cited case. There is absolutely no

evidence to show that if the decree for specific performance is granted directing the plaintiff to pay

the balance found due, prejudice would be caused to the defendant. Admittedly the defendant was

out of possession and he enjoyed the benefit of the major portion of the sale consideration allthrough. The earned Counsel for the defendant relied on an earlier decision of this Court in

Komisetti Venkata Subbayya 's case (supra), wherein His Lordship Justice Madhava Reddy (as he

then was) held that where the plaintiff asserts that he was paid Rs. 1,500/- to the defendant and is

willing to pay the balance of Rs. 272/- but failed to prove the said payment of Rs. 1,500/-to the

defendant, the plaintiff is disentitled to the discretionary relief of specific performance not only on

the ground that he has set up a false plea but also that he was not ready and willing to perform his

part of the contract. The facts of the cited case are not at all similar to the facts of this case. In that

case, on the date of execution of agreement of sale dated 24-4-1960 only Rs. 50/- was paid and

pleaded in the plaint that he paid a further sum of Rs. 1,500/- on 14-10-1960 and the defendants put

him in possession of the suit site but failed to prove the said payment. The plaintiff in that case

issued a notice, dated 10-10-1961 to execute the sale deed after receiving the balance of purchase

money. But the plaintiff kept quiet without filing a suit. In the meantime, the second defendant sold

the site to the third defendant on 14-11-1963 under registered sale deed and thereafter the third

defendant also in turn sold the same to the 4th defendant under another registered sale deed on

21-5-1962 and later the 4th defendant also in turn alienated the said site to the 5th defendant under

another sale deed on 27-9-1963. When the 5th defendant therein entered into possession over the

land on 11-11-1963, the plaintiff therein filed the suit for specific performance and for recovery of

possession. Under those circumstances, it was held that as the plaintiff failed to prove the payment





of Rs. 1,500/-, and had taken a false plea of payment of Rs. 1,500/- though he only paid Rs. 50/- at

the time of agreement, he is not entitled for specific performance. Thus, the facts of the present case

are entirely different from the facts of the cited case. In the instant case, major portion of the

amount has been paid and came into possession and thereafter purchased stamps and got the sale

deed drafted and hence the said decision is not applicable to this case, where as the facts of the later

decision of this Court in Komisetti Venkata Subbayya's case (supra), are similar to the facts of this

case. I am of the considered view that even if it is assumed that the plaintiff took a false plea of

payment of Rs. 5,000/- and odd to the defendant, it does not disentitle the plaintiff to obtain the

decree of specific performance.

24. The reasons given by the trial Court for refusing to grant specific performance are the following:

The specific case of the plaintiff as can be culled out from the plaint is that she is not in arrears of

balance of sale price at all. But the evidence available on record would go to show that a sum of Rs.

5,000/- and odd is still due under the agreement of sale to the defendant. The plaintiff has not

pleaded in the plaint that she is ready to pay the said amount to the defendant in case her version

that she had already paid it is disbelieved. That being the case, it cannot be said that she is ready and

willing to perform her part of the contract.

The plaintiff who pleaded that she paid Rs. 30,000/- as earnest money under the agreement of sale

failed to prove it. As already pointed out, PW-1 her father-in-law stated in his evidence that the

earnest money of Rs. 30,000/- was not paid at a time but it was in instalments. The plaintiff though

asserted in the plaint that she paid the balance of sale price of Rs. 5,081.47 ps. On 18-8-1983 to the

defendant, ultimately failed to prove it. In other words the said allegation turned out to be false one.

Though she pleaded in the plaint that original agreement of sale, sale deed engrossed on the stamp

papers which were entrusted to PW-2 were taken away by the defendant, she failed to prove thesame. In view of her failure to prove the above aspects of the case, she is not entitled for the

discretionary relief of specific performance of contract of sale. It is a settled principle of law that a

person who seeks equity must come to the Court with clean hands.

25. As seen from the judgment of the trial Court, the learned Judge accepted the plea of the plaintiff

that she paid Rs. 30,000/- prior to 18-8-1983 and rejected the case of the defendant that he received

only Rs. 11,000/-. Therefore, it is immaterial whether Rs. 30,000/- was paid in instalments or at a

time as pleaded in the plaint as long as the fact of payment of Rs. 30,000/-was proved. Therefore,

the learned Judge ought not to have taken that as one of the grounds to deny the specific

performance. Regarding the entrustment of original agreement of sale, sale deed engrossed on the

stamp papers to PW-2 and about the defendant taking away those documents from PW-2 and failed

to return the same are held proved for the reasons stated supra in Point Nos. 3 and 4. Therefore, this

reason given by the trial Judge to deny specific performance does not stand. Another reason given

by the trial Court is that the plaintiff has not pleaded in the plaint that in case it is found that an

amount of Rs. 5,081.47 ps. is still due she is ready to pay the said amount also and take the sale

deed. According to the plaintiff the entire amount was paid. But, of course, the plaintiff could not

prove the same for the reason that PW-2 did not state that he paid the amount to the defendant,

though PW-1 stated that he paid the said amount to PW-2 in order to pay the same to the defendant





at the time of registration. In view of the lack of consistency in the evidence of PWs. 1 and 2, the trial

Court and also this Court held that the plaintiff failed to prove that payment to the defendant. That

does not mean that the plaintiff took a false plea. It might be that PW-1 paid the same to PW-2 with

a request to pay the same to the defendant at the time of registration before the Sub-Registrar and

as the said stage did not come, PW-2 did not pay the same to the defendant. In such a case, it cannot

be said that the plaintiff took a false plea. When such was the case of the plaintiff, it is too much to

expect the plaintiff to plead in the plaint that in case the Court found that she did not pay the entire

sale consideration and is still due some amount, she is prepared to pay the same and take the sale

deed. Merely because such pleading is not there in the plaint, it cannot be said that the plaintiff was

not ready and willing to take sale deed by paying the balance sale consideration if any found due.

Admittedly the plaintiff has been in possession and enjoyment since the date of agreement of sale

and according to her she made some improvements also to the land by spending huge amounts and

under those circumstances, it cannot be said that the plaintiff was not ready and willing to take the

sale deed by paying the balance if any found due towards the sale consideration at the time of

registration. Obviously on account of dispute raised by the defendant by demanding more amount

than the amount due towards the balance of sale consideration, the sale deed could not be presented

before the Sub-Registrar on 18-8-1983 and it had to be kept with an elderly man PW-2 and

thereafter the defendant with fraudulent intention of denying the very transaction of agreement of

sale, took away the documents and filed the suit for injunction against the plaintiff, her husband and

PW-1 pleading that the plaintiff herein has no manner of right over the suit land and they were

unlawfully interfering with his possession and enjoyment. It is not an admitted fact that he was not

in possession of the land and the possession was already delivered to the plaintiff. So, in my

considered view it is the defendant who was responsible for the failure of registration on 18-8-1983

and not the plaintiff and PW-1 and therefore it cannot be said that the plaintiff was not ready and

willing to perform her part of contract on the ground that she has not pleaded in the plaint that she

is ready to pay the balance amount if any found due. It is not as if, the Court has no power to directthe plaintiff to pay the balance amount due before directing the defendant to execute the sale deed.

In this regard it is useful to refer to the decision of the Apex Court in Gobind Ram's case (supra),

wherein the Apex Court granted decree for specific performance in favour of the purchaser with a

direction to pay far more amount than the agreed amount to the vendor. In that case, the agreed

consideration was only Rs. 16,000/- but ultimately the Court decreed the suit for specific

performance directing the plaintiff to pay more than Rs. 4,00,000/-taking into consideration the

escalation of prices after applying the principle of justice, equity and good conscience. Therefore,

nothing prevents the Court from directing the purchaser to pay the balance of consideration or any

amount in addition to that as the condition precedent for granting decree of specific performance

when the equities are in favour of the purchaser. Here in the instant case, it is found that it was only

on account of the fault of the defendant, the registration could not take place and that the plaintiff

was already put in possession and she paid major portion of the consideration and the defendant

enjoyed the consideration amount received from the plaintiff and that it was the defendant who

approached the Court first with unclean hands by way of filing the suit with false pleas prior to

plaintiff filing the present suit. Further the defendant herein did not plead in the written statement

that any prejudice would be caused to him if the specific performance were ordered. On the other

hand, he pleaded in the written statement that in case the specific performance is ordered, plaintiff

be directed to pay balance of sale consideration with interest at 12 1/2 % per annum. Of course





according to him the balance of sale consideration is Rs. 24,000/-. But the trial Court and this Court

found that the balance amount is only Rs. 5,081.47 ps. Therefore, in my considered view the

defendant is not going to be prejudiced in any manner if the decree for specific performance is

granted with a direction to the plaintiff to pay the balance of sale consideration of Rs. 5,081.47 ps.

with interest thereon at 12 1/2% per annum from 18-8-1983. Further in Prakash Chandra's case

(supra), the Apex Court held that the ordinary rule is that specific performance should be granted

and it ought to be denied only when equitable considerations point to its refusal and the

circumstances show that damages would constitute an adequate relief. In that case it was found that

the conduct of the purchaser was not of such a nature so as to disentitle him to the relief of specific

performance and that there is no evidence to show that the purchaser secured an unfair advantage

over the vendor when he entered into agreement and there is nothing to prove that the performance

of the contract would involve the vendors in some hardship which they did not foresee. In the

instant case also there is no evidence to show that granting of specific performance would result in

hardship to the defendant. On the other hand, denying specific performance would result in

hardship to the plaintiff as she was already put in possession and she paid major portion of the sale

consideration and made improvements to the land also. Under these circumstances there is no need

to deviate from the ordinary rule that the specific performance should be granted. Of course, the

earned Counsel for the defendant submitted several decisions to show that the relief of specific

performance is a discretionary relief and therefore in a case like this, Court cannot grant such

equitable relief as the plaintiff did not approach the Court with clean hands. There cannot be any

dispute that the relief of specific performance is a discretionary relief. But, merely because the Court

has got discretion to deny the relief of specific performance, it cannot be said that in each and every

case the Court can wriggle the contract between the parties and deny the relief of specific

performance on some minor flaw on the part of the plaintiff. As observed by the Apex Court in

Gobind Ram's case (supra), the Court should be guided by the principles of justice, equities and

conscience while exercising its discretion. In the peculiar circumstances of this case where theparties had gone to the Sub-Registrar's Office and got the sale deed drafted and completed all the

formalities except registration but could not present the documents for registration on account of

some petty disputes that arose between the parties and where the possession was already delivered

to the plaintiff, it cannot be said that the equities are not in favour of the plaintiff for exercising the

discretion to grant relief of specific performance, especially when the defendant is not going to be

prejudiced in any manner. The facts of the decisions relied on by the defendant which are

mentioned supra are not at all similar to the facts of this case. In the instant case the transaction

reached the stage of purchasing stamps and drafting sale deed and therefore those decisions do not

come to the aid of the defendant in this case. As already observed supra, this Court in K.

Ramulamma's case (supra), held that in certain situations mere false plea may not be sufficient to

disentitle the plaintiff from having a specific performance but the prejudice caused thereby also

must be shown. In the instant case, the defendant neither pleaded nor adduced any evidence to

show that prejudice would be caused if the specific performance were granted. Section 20(2) of the

Specific Relief Act contains the cases in which the Court may properly exercise discretion not to

decree specific performance. Three types of cases have been given under Sub-section (2) in the form

of Clauses (a), (b) and (c) in which the Court exercise its discretion not to decree specific

performance. It is useful to extract the said clauses hereunder:





(a) where the terms of the contract or the conduct of the parties or the time of entering into the

contract or the other circumstances under which the contract was entered are such that the contact,

though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he

did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

(c) where the defendant entered into the contract under circumstances which though not rendering

the contract voidable, makes it inequitable to enforce specific performance.

The instant case does not fall under any of these clauses. In my considered view, the learned trial

Judge erred in holding that the plaintiff is not entitled to the relief of specific performance. The

learned Judge ought to have granted decree for specific performance directing the plaintiff to pay

Rs. 5,081.47 ps. with interest thereon at 12 1/2% per annum as claimed by the defendant in the

written statement as an alternative, and directing the defendant to execute the sale deed on receipt

of the said amount. Thus, these points are found in favour of the appellant and against the

defendant.

Point Nos. 8 and 9:

26. As this Court found that the plaintiff is entitled for the main relief prayed for in this suit, these

points need not be answered.

Point No. 10:

27. In view of the findings on Points 1 to 7, the judgment and decree passed by the trial Courtdenying the relief of specific performance of agreement of sale is not sustainable in law. Hence, they

are liable to be set aside and the suit is to be decreed granting main relief directing the plaintiff to

deposit Rs. 5,081.47 ps. with interest thereon at 12 1/2% per annum from 18-8-1983 till the date of

deposit. Thus, this point is held accordingly.

Point No. 11:

28. In the result, the appeal is allowed granting relief of specific performance of agreement of sale

subject to the condition that the plaintiff shall deposit Rs. 5,081.47 ps. with interest thereon at

12'/2% per annum from 18-8-1983 till the date of deposit before the trial Court, within one month

from this day and on such deposit the defendant shall execute the sale deed within one month

thereafter failing which the Court shall execute the sale deed in favour of the plaintiff in respect of

plaint schedule property. After execution of registered sale deed, the defendant is entitled to

withdraw the said amount deposited in the Court. In the event of failure to deposit the amount

within one month from this day, the appeal stands dismissed and the judgment and decree passed

by the trial Court regarding the alternative relief stands. Each party shall bear their own costs.


Boddu Satyavathi vs Boddu Ramakrishna Rao on 7 November, 2006

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Transcript of Boddu Satyavathi vs Boddu Ramakrishna Rao on 7 November, 2006