It is settled legal position that in a suit for specific performance the plaintiff has to plead and prove that he has always been ready and willing to perform his part of contract. Section 16(c) of the Specific Relief Act is as follows. 16. Personal bars to relief: Specific performance of a contract cannot be enforced in favour of a person, a)................. b).................. c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by defendant Explanation:- For the purposes of the clause (c); (i) where a contract involves the payment of money it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court (ii) the plaintiff must aver performance of or readiness and willingness to perform the contract according to its true construction.= remand the matter to the lower Court with a direction to frame the additional issues as to (1) whether the time is the essence of the contract in the facts and circumstances of the case and (2) whether the plaintiff has always been ready and willing to perform his part of the contract? The lower Court may also consider the applications of defendant No.3, if any filed, to receive the additional evidence.


THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR        

Appeal Suit No.2189 of 1998

01.10.2012

Yerragogu Mrutyunjaya Rao

Marni Kumara Veeraswamy and others  

Counsel for the Appellant: Sri Y. Hemachander

Counsel for the Respondents: Sri Y.V. Ravi Prasad

<Gist :

>Head Note:

?Cases Referred:
1. 2012(1) ALT 424
2. AIR 2012 AP 17
3. 2009(1) UAD 696(SC)
4. 2000(2) SCC 428

Judgment:

        Aggrieved by the judgment and decree dated 26.08.1998 made in O.S. No.83
of 1987 on the file of the Additional Senior Civil Judge, at Eluru, West
Godavari District, whereby and whereunder the suit filed by the first
respondent/plaintiff for specific performance has been decreed, the third
defendant in the lower Court preferred this appeal.
        The parties, hereinafter, will be referred to as they are arrayed before
the lower Court for the sake of convenience.
        The first defendant Yerragogu Satyavathi was the original owner of the
suit schedule property.  Defendants 3, 7 and 8 are the sons of defendant No.1,
defendants 4, 9 and 10 are the daughters of defendant No.1.  The specific case
of the plaintiff is that defendant No.1 agreed to sell the suit schedule land
admeasuring Ac.4-56 cents at Rs.69,000/- per acre and having received an amount
of Rs.50,000/- executed an agreement of sale in Ex.A1 on 19.05.1986.  The
further case of the plaintiff is that Exs.A3, A4 and A5 are the title deeds of
defendant No.1 and those documents have been handed over to him on 19.05.1986.
As per the terms and conditions of the agreement of sale the plaintiff agreed to
pay the balance sale consideration of Rs.2,64,640/- on or before 28.02.1987 and
defendant No.1 agreed to execute the registered sale deed in the name of the
plaintiff or any other person nominated by the plaintiff.  It is also agreed
that before registration, the land should be measured and the sale consideration
at Rs.69,000/- per acre to be paid basing on the total extent of land
ascertained.  In case if the plaintiff violates the conditions of the agreement,
the advance amount will be forfeited and if the defendant violates the
conditions, she would be liable for civil and criminal action in addition to her
obligation to execute the conveyance and pay damages for breach of contract.  By
mutual consent, the time for execution could be extended.
        Defendant No.8 Ravindra Mohan Rao, son of defendant No.1, Gogu Damayanti  
Devi, daughter of defendant No.1 and one Y. Phanindra Choudary (PW.2) attested
the agreement of sale Ex.A1.  Defendant No.8 died and his LRs defendants 15 to
17 are brought on record.  Originally, the suit was filed against defendants 1
to 3, but subsequently after the death of defendant No.1, defendants 4 to 10
were added as LRs of defendant No.1.  Defendant No.2 claimed that defendant No.1
executed an agreement of sale dated 19.05.1986 in his favour.  After the death
of defendant No.2 his LRs defendants 11 to 14 were added.
        Since defendants 11 to 14 did not file any appeal and there is nothing on
record to show that defendant No.2 or his LRs filed suit for specific
performance both the learned counsel have agreed that there is no need to refer
to the contentions of second defendant or with regard to findings on the alleged
agreement of sale in favour of defendant No.2.  Now the main dispute is between
the plaintiff and the third defendant.
        The reasons and circumstances for selling the land as seen from the
recitals of Ex.A1, assigned by defendant No.1 are that she was not getting
sufficient income from the suit schedule land and she was intending to purchase
immovable property at some other place for the benefit of her family.  The
further case of the plaintiff is that as defendant No.1 was in need of money he
paid Rs.5,200/- on 15.08.1986 and Rs.40,000/- on 04.11.1986 and these payments
are endorsed on the back of Ex.A1 agreement of sale which are marked as Ex.A6
and Ex.A7 respectively and defendant No.1 and defendants 8 and 9 acknowledged
these endorsements.
        The plaintiff also claimed that he paid Rs.10,000/- on 26.11.1986 when
defendant No.1 was in need of money in connection with the marriage of her grand
daughter.  However, he neglected to get the same endorsed on the back of Ex.A1
agreement of sale.
        It is also his case that he had been demanding defendant No.1 to get the
land measured and to receive the balance of sale consideration and execute
registered sale deed from 05.01.1987 onwards several times, but defendants 1 and
3 had been postponing the same from time to time on the ground that it was not
convenient for them.  On last occasion on 20.02.1987 when the plaintiff demanded
defendant No.1 to perform her part of contract, defendants 1 and 3 promised and
made him believe that the transaction would be completed in the first week of
March 1987 without fail.  The plaintiff implicitly believed the representation
of defendants 1 and 3 and as the time mentioned by them was not far off from
20.02.1987, he could not expect that the first defendant would try to resile
from the contract.  The further case of the plaintiff is that he hoped to take a
conveyance from the first defendant in the first week of March 1987 positively,
but subsequently came to know that defendant No.1 fraudulently and collusively
executed a conveyance deed on 02.03.1987 in favour of defendant No.3 in respect
of the plaint schedule property and further extent of 0-35 cents not covered by
the contract.  The specific case of the plaintiff is that the sale deed dated
02.03.1987 is a collusive, fraudulent and nominal sale deed brought into
existence for the purpose of defeating his rights.  The plaintiff got issued a
legal notice in Ex.A9 dated 21.03.1998 and defendants 1 to 3 though received
notices, did not give reply but defendant No.2 alone gave reply with false
contentions.  Contending that, the plaintiff has always been ready and willing
to perform his part of contract, but the first defendant backed the agreement,
the plaintiff filed the suit for specific performance.
        Defendant No.1, though engaged an advocate, remained ex parte and did not
file any written statement.  She died on 06.12.1992.  Defendants 9, 10 and 15
remained ex parte.  It appears that defendants 4 to 6 filed a memo adopting the
written statement filed by the first defendant though in fact there is no
written statement by the first defendant.  Defendants 7 and 11 to 14 adopted the
written statement of defendant No.2.
        The third defendant filed written statement and denied that his mother
defendant No.1 executed an agreement of sale under Ex.A1.  The alleged payments
said to have been made by the plaintiff under Exs.A6 and A7 endorsements are
also denied.  It is also denied that defendant No.1 delivered her original title
deeds to the plaintiff. It is also denied that the plaintiff was ready and
willing to pay the balance sale consideration and obtain the sale deed from
defendant No.1 and that he had been demanding defendant No.1 to get the land
measured, receive the balance sale consideration and execute the registered sale
deed from 05.01.1987 onwards several times, but defendant No.1 and her son
defendant No.3 had been postponing the same from time to time on the ground that
it was not convenient for them and that the defendants 1 and 3 promised to
complete the transaction in the first week of March 1987.  It is also denied
that he (D3) had no capacity to purchase the land from defendant No.1 and that
he had notice of Ex.A1 agreement of sale entered into between the plaintiff and
defendant No.1.  The specific case of defendant No.3 is that defendant No.1
never intended to sell the suit schedule property to the plaintiff or to any
other person as there are four tombs of their ancestors in the suit schedule
property and it had always been the intention and desire of defendants 1 and 3
that the property should be retained by their family.  It is also the case of
defendant No.3 that the alleged agreement of sale set up by the plaintiff if at
all could be a lending arrangement and the said agreement must have been
fabricated and brought into existence by the plaintiff and his associates by
making false and fraudulent representation with ulterior and wrongful motives.
        The lower Court framed the following issues.
1. Whether the agreement of sale dated 19.05.1986 said to have been executed by
the first defendant in favour of plaintiff is true, supported by consideration,
valid and binding on the defendants?
2. Whether the plaintiff is entitled for a decree for specific performance of
agreement of sale dated 19.05.1986?
3.  Whether the agreement dated 19.05.1986 is only a lending agreement as
pleaded by the third defendant?
4. Whether the third defendant is a bona fide purchaser without notice of the
agreement dated 19.05.1986, in favour of the plaintiff by the first defendant?
5. Whether the sale deed dated 02.03.1987 executed by the first defendant in
favour of the third defendant is true, valid, supported by consideration and
binding on the plaintiff and other defendants?
6. Whether the agreement of sale dated 19.04.1986 alleged to have been executed
by the first defendant in favour of the 2nd defendant is true, supported by
consideration, valid and binding on the plaintiff and other defendants?
7. Whether the plaintiff is entitled to the alternative relief of a decree for a
sum of Rs.3,00,000/- with a charge as claimed by him?
8. To what relief.

On issues 1 to 3, the lower Court found that; defendant No.1 did not file
written statement and that she had not denied the execution of Ex.A1; there is
no evidence to say that Ex.A1 is money lending agreement; defendant No.3 did not
examine defendant No.9 to deny the genuineness of Ex.A1; defendant No.3 cannot
contradict the terms and conditions of Ex.A1 and the evidence of PWs.2 and 3
proves that defendant No.1 executed Ex.A1 and received payments under Exs.A6 and  
A7 endorsements.   Thus, the lower Court found that Ex.A1 is genuine agreement
of sale.  However, the contention of the plaintiff that he paid an amount of
Rs.10,000/- on 26.11.1986 is disbelieved.  The lower Court further held that the
version of defendant No.3 is not acceptable and that Ex.A10 is not a genuine
sale deed.  Holding so, the lower Court decreed the suit.  Challenging the same,
defendant No.3 filed this appeal.
The main submission of Sri Y. Hemachander, learned counsel for the
appellant/defendant No.3, is that when the defendants 3, 16 and 17 who are the
legal heirs of defendant No.1 denied in their written statement that the
plaintiff had always been ready and willing to pay balance sale consideration,
the burden was on the plaintiff to prove the same.  It is argued that the lower
Court did not examine this issue as no issue was framed as to whether the
plaintiff was ready and willing to perform his part of contract.  It is further
argued that all the recitals of Ex.A1 i.e., entire document has to be read to
gather the intention of the parties and that as per the terms and conditions of
Ex.A1 the last date for payment of consideration was fixed as 28.02.1987 and
admittedly the plaintiff failed to pay the balance sale consideration amount on
or before 28.02.1987.  It is also argued that since there is forfeiture clause
and the plaintiff failed to pay the balance sale consideration within the
stipulated time and the time is not extended, it has to be held that the parties
intended that time is the essence of the contract.  It is also submitted that in
fact after making payment on 04.11.1986 under Ex.A7 there is nothing on record
to show that the plaintiff was ready with the balance sale consideration amount.
It is further submitted that except the oral evidence of PWs.1 and 2 there is
nothing on record to show that the plaintiff ever approached defendant No.1 with
the balance sale consideration amount and requested her to measure the land.  It
is further submitted that the plaintiff had not issued any notice to defendant
No.1 informing her that he was ready with the balance sale consideration amount
and asked defendant No.1 to measure the land.  It is further argued that there
is no condition in Ex.A1 that only upon measurement of land, balance amount
would be paid.  Thus, the main contention of the learned counsel for the
appellant/defendant No.3 is that since the plaintiff was not ready with the
balance sale consideration, he did not come to the village and asked defendant
No.1 to get the land measured.  It is vehemently argued that when the plaintiff
is not ready with the balance sale consideration amount the question of
measuring the land does not arise.  It is also submitted that admittedly there
is a clause in the agreement enabling the parties to extend the time of
agreement, but admittedly the plaintiff did not seek extension of time nor
issued any notice to defendant No.1 seeking extension of time.  It is also
submitted that it is not the case of the plaintiff that he sought extension of
time nor there is any evidence on record to show that defendant No.1 agreed to
extend the time.  It is further submitted that the lower Court has believed the
interested testimony of PWs.1 and 2.  PW.2 has been doing real estate business
and since the value of the land increased the plaintiff filed the suit for
specific performance.  It is also submitted that admittedly there is a
forfeiture clause in Ex.A1 and when there is forfeiture clause the plaintiff
ought to have sought extension of time.  It is further submitted that PW.3 is
the family scribe of PW.2 and the stamps for Ex.A1 were purchased four days
prior to 19.05.1986, but however the evidence of PWs.1 and 2 would go to show
that on the same day i.e., on 19.05.1986 talks were held and sale consideration
was finalized and Ex.A1 was executed.  If that is the case, there was no
necessity for PW.2 to purchase the stamps four days prior to 19.05.1986.  It is
also submitted that the lower Court failed to critically examine the evidence of
PWs.1 to 3 and the suspicious circumstances.  His main contention is that
defendant No.3, who is no other than the son of defendant No.1, had been
cultivating the land and he was in possession of the land, but defendant No.3
was not informed about Ex.A1 agreement of sale and no notice was issued to him
and therefore defendant No.3 had no knowledge about Ex.A1.  It is also submitted
that admittedly defendant No.3 is not a party to Ex.A1 or to the endorsements
made on Ex.A1.  It is also submitted that defendant No.3 is claiming not only as
purchaser from defendant No.1, but also as legal heir of defendant No.1,
therefore he can take all the pleas that were available to defendant No.1.  His
further submission is that the lower Court failed to consider that time is the
essence of the contract and since the plaintiff failed to pay the balance sale
consideration on or before 28.02.1987 the agreement stands cancelled.  He has
relied on the decisions in Komatireddy Buchi Reddy v. P. Narsimha Reddy1, and P.
Chiranjeeva Rao v. B. Koteshwar Rao2, in support of his contention that
measurement of land is not essential condition for payment of balance sale
consideration amount.  His main submission is that even according to PW.1 on the
last occasion he demanded defendant No.1 to execute sale deed in his favour and
to receive the balance sale consideration on 20.02.1987, thus it is clear that
PW.1 himself did not state in his evidence that he demanded defendant No.1 to
measure the land.
Sri Y.V. Ravi Prasad, learned counsel for the plaintiff submitted that defendant
No.3 had not taken any specific plea that time is the essence of the contract.
It is further submitted that since the remaining sale consideration amount has
to be paid in proportion to the total extent of land measured, the payment of
remaining consideration amount is not possible without measuring the land.  It
is his submission that it is always for the vendor to take steps to measure the
land and when defendant No.1 had not taken steps to measure the land it is
deemed that the time is extended.  It is also his submission that the settled
legal position is that time is not the essence of the contract and that whenever
there are reciprocal obligations, the obligations have to be fulfilled as per
the terms and conditions of the agreement or as per the natural course of events
under Sections 51 and 52 of the Contract Act.  He further submitted that once
defendant No.3 had taken a false plea that Ex.A1 is a money lending agreement,
the burden lies on him to prove the same and when defendant No.3 had failed to
prove the same, he cannot take the plea that the plaintiff was not ready and
willing to perform his part of contract.  His main submission is that defendant
No.1 lived till 06.12.1992 but, she had not denied the execution of Ex.A1.  She
had also not filed any written statement denying the contention of the plaintiff
that he sought measurement of the land before 28.02.1987.  It is also his
submission that the conduct of defendant No.1 in handing over the original title
deeds to the plaintiff and the defendants 8 and 9 in signing Ex.A1 along with
defendant No.1 and also on the subsequent endorsements would go to show that
defendant No.1 and other family members intended to sell the suit schedule land
to the plaintiff.  His further submission is that it is for defendant No.3 to
prove that he had no knowledge about the prior transaction between the plaintiff
and defendant No.1 and when admittedly defendant No.3 was in good terms with
defendant No.1 nothing prevented defendant No.3 from ascertaining the facts from
defendant No.1.  His main submission is that defendant No.3 is not a bona fide
purchaser and it cannot be said that he had no knowledge about the agreement of
sale executed by defendant No.1 in favour of the plaintiff.  It is also his
submission that Ex.A10 is a false and fabricated document and the recitals of
Ex.A10 are not true.  He further submitted that admittedly 0-35 cents of land
was already gifted by the father of defendant No.3 in favour of defendant No.9,
therefore total extent of land was Ac.4-56 cents, but defendant No.3 had taken
the sale deed for Ac.4-91 cents.  It is also submitted that when the plaintiff
has agreed to purchase the land at Rs.69,000/- per acre, it is surprising to
note that defendant No.3 had purchased the entire Ac.4-91 cents of land for only
Rs.48,000/-.  The amount mentioned in Ex.A10 and the recital therein that
original title deeds were handed over to defendant No.3 go to show that Ex.A10
is not a genuine document.
In reply, learned counsel for the appellant/defendant No.3 submitted that
defendant No.3 had taken a specific plea that the plaintiff was not ready and
willing to perform his part of contract and that the specific relief is an
equitable remedy and that there are tombs of ancestors of defendant No.1 and in
view of the conduct of the plaintiff in not taking any steps to get the land
measured on or before 28.02.1987 and in view of the circumstance that he failed
to pay the remaining balance of sale consideration amount before the stipulated
date it has to be held that he is not entitled to the discretionary relief of
specific performance.
Defendant No.3 has filed ASMP No.1491 of 2010 to receive certain documents as
additional evidence i.e, pattadar passbooks and photographs showing four tombs
of ancestors of defendant No.1 in the suit schedule land.  He has filed another
ASMP (SR) No.924 of 2010 to receive No.3 Adangal as additional evidence.
Learned counsel for the appellant/defendant No.3 submitted that PWs.1 and 2 in
their evidence admitted that there are tombs of ancestors of defendant No.1 in
the suit schedule land and that, the claim of defendant No.3 that he has been in
possession of the suit land is not denied by the plaintiff and in the above
circumstances, there is no impediment to mark those documents as additional
evidence and that the plaintiff is not entitled for the discretionary relief of
specific performance of the contract.
Sri Y.V. Ravi Prasad, learned counsel for the plaintiff, submitted that the
principles of rule of best evidence would apply to this case and defendant No.3
has not assigned any reason as to why he could not produce those documents
before the lower Court and when he had accessibility to the best evidence he
ought to have produced such evidence before the lower Court.  He has relied on
certain decisions in support of his contention that additional evidence is not a
matter of regular course and no additional evidence can be received at a belated
stage.
The point that arises for consideration is whether the lower Court ought to have
framed the issues; (1) whether the plaintiff proved that he has been ready and
willing to perform his part of contract? and (2) whether the time is the essence
of the contract?
It is settled legal position that in a suit for specific performance the
plaintiff has to plead and prove that he has always been ready and willing to
perform his part of contract.  Section 16(c) of the Specific Relief Act is as
follows.
16. Personal bars to relief:  Specific performance of a contract cannot be
enforced in favour of a person,
a).................
b)..................
c) who fails to aver and prove that he has performed or has always been ready
and willing to perform the essential terms of the contract which are to be
performed by him, other than terms the performance of which has been prevented
or waived by defendant
Explanation:- For the purposes of the clause (c);
(i) where a contract involves the payment of money it is not essential for the
plaintiff to actually tender to the defendant or to deposit in Court any money
except when so directed by the Court
(ii) the plaintiff must aver performance of or readiness and willingness to
perform the contract according to its true construction.

The plaintiff in para 8 of his plaint has specifically stated that he has always
been ready and willing to perform his part of the contract and he is even now
ready to pay the balance sale consideration and obtain the registered conveyance
bearing all expenses.  The plaintiff in para 9 of his plaint further averred
that he had been demanding the first defendant to get the land measured, receive
the balance sale consideration and execute registered sale deed from 05.01.1987
onwards several times, but the first defendant or her son have been postponing
the same from time to time by saying that it was not convenient for them.  It is
statd as follows.  "On the last occasion i.e., on 20.02.1987 when he demanded
the first defendant to perform her part of the contract, defendants 1 and 3
promised and made him believe that the transaction would be completed in the
first week of March 1987 without fail.  The plaintiff implicitly believed the
representations of defendants 1 and 3 and as the time mentioned by them was not
far off from 20.02.1987 he could not expect that the first defendant would try
to resile from the contract."
It has to be seen that defendant No.3 in para 2 of his written statement averred
as follows.  "The further allegations in the plaint about the plaintiff's
willingness and readiness to pay the balance of the sale consideration and
obtain a sale deed from the 1st defendant in pursuance of the alleged sale
agreement dated 19.05.1986 are also not true and valid and have been trumped up
for the purpose of the suit.  There is also no truth or substance in the
allegations in para 9 of the plaint that the plaintiff has been demanding the
1st defendant to get the land measured, receive the balance sale consideration
and execute a registered sale deed from 05.01.1987 onwards, several times, but
that the 1st defendant and her son, the 3rd defendant herein have been
postponing the same from time to time, saying that it was not convenient for
them then and that defendants 1 and 3 promised to complete the transaction in
the first week of March, 1987 without fail and so forth."
Thus, there is a specific averment by the plaintiff that he has always been
ready and willing to perform his part of contract and there is a specific denial
of the same by the third defendant.  The plaintiff also specifically averred
that he demanded defendant No.1 to get the land measured and receive the balance
sale consideration and the same has been denied by the third defendant.
Order XIV Rule 1 (5) CPC is as follows.
1. Framing of issues.-(1).................
(2) ............
(3) ............
(4) ............
(5) At the first hearing of the suit the Court shall, after reading the plaint
and the written statements, if any, and after examination under rule 2 of Order
X and after hearing the parties or their pleaders, ascertain upon what material
propositions of fact or of law the parties are at variance, and shall thereupon
proceed to frame and record the issues on which the right decision of the case
appears to depend.

Thus, an issue arises where a particular fact or preposition of law is asserted
by one party and denied by the other.  The primary object of framing issues in a
suit is to ascertain the controversy and rival contentions between the parties.
When there is specific assertion and denial of the averment, the lower court
ought to have framed an issue as to whether the plaintiff has always been ready
and willing to perform his part of contract.  Admittedly, the lower Court has
not framed such an important issue.  Of course, the parties also should insist
the lower Court to frame necessary issues.   In a suit for specific performance
one of the main issue would be whether the plaintiff has always been ready and
willing to perform his part of contract.  Where in a case there is omission of
framing an important and necessary issue which affects the disposal of the suit
on merits, the case must be remanded for a fresh trial.  It is for the parties
either to lead further evidence or to argue the case basing on the evidence
already available on record.  The lower Court committed material irregularity in
not framing the necessary issues.
As seen from the terms and conditions of Ex.A1, admittedly, the plaintiff agreed
to pay the balance sale consideration on or before 28.02.1987.  Of course, there
is also a clause that the land should be measured before the date of
registration to pay proportionate balance sale consideration.  There is also
another clause that in case if the plaintiff violates the conditions of the
agreement, the advance amount would be forfeited.  It is also not in dispute
that there is a clause in the said agreement that by mutual consent, the time
for execution could be extended.   In the above circumstances, the lower court
ought to have framed an issue as to whether the time is essence of the contract.
Learned counsel for the appellant/defendant No.3 submitted that no notice was
issued by the plaintiff seeking extension of time, though it is specifically
mentioned that the agreement stands cancelled if remaining balance sale
consideration is not paid by 28.02.1987 and the advance amount stands forfeited.
It is also submitted that PW.1 deposed that he had withdrawn Rs.25,000/- from
the Co-operative Bank and the remaining amount of Rs.25000/- was raised by sale
of jewellery, thus, his submission is that the plaintiff had no capacity to
arrange initial amount of Rs.50,000/- and he was never ready with the balance of
sale consideration amount.  It is further submitted that even if the
endorsements under Exs.A6 and A7 are admitted to be true, the last payment was
made on 04.11.1986 and subsequently there is nothing on record to say that the
plaintiff was ever ready with the balance sale consideration amount.  It is also
his submission that when the plaintiff is not ready with the balance sale
consideration amount, the question of measuring the land does not arise.  It is
also submitted that the plaintiff has not issued any notice to defendant No.1
informing her that he was ready with the balance sale consideration.  It is also
submitted that there is no responsibility on defendant No.1 to measure the land
when the plaintiff is not ready with the balance sale consideration amount.  It
is also submitted that even in the plaint averments the plaintiff did not
specifically mention on what date and at what time he demanded defendant No.1 to
measure the land.
Sri Y.V. Ravi Prasad submitted that as per the terms and conditions of Ex.A1,
the total balance sale consideration could be ascertained only on measuring the
land and therefore the measurement of land was a condition precedent for payment
of balance sale consideration.  It is also submitted that defendant No.3 never
averred that the plaintiff has no capacity to pay the balance of sale
consideration.
 Learned counsel for the appellant/defendant No.3 has relied on the judgment in
Azhar Sultana v. B. Rajamani3, in support of his contention that the subsequent
purchaser also can raise a plea as to whether the plaintiff is ready and willing
to perform his part of contract.  Reliance is also placed on Ram Awadh v.
Achhaibar Dubey4, wherein it was held that not only the original vendor but also
subsequent purchaser would be entitled to raise the contention that the
plaintiff is not ready and willing to perform his part of the contract.  Thus,
it appears that defendant No.3 also can take the plea as to whether the
plaintiff was ready and willing to perform his part of the contract.
Both the counsel relied on several decisions with regard to the principles to be
observed while considering the claim for specific performance of contract.
Anyhow, I am not inclined to deal with all those contentions and decisions cited
by both the learned counsel  or about the merits of the case.  Since the lower
Court has not framed necessary issues and finding on such issues appears to be
necessary by the lower Court,
I am inclined to remand the matter to the lower Court with a direction to frame
the additional issues as to (1) whether the time is the essence of the contract
in the facts and circumstances of the case and (2) whether the plaintiff has
always been ready and willing to perform his part of the contract?  The lower
Court may also consider the applications of defendant No.3, if any filed, to
receive the additional evidence.
For the reasons stated above, the appeal is allowed and the impugned judgment
and decree dated 26.08.1998 made in O.S. No.83 of 1987 is set aside.  The matter
is remanded to the lower Court, under Order XLI Rule 23 CPC, with a direction to
the lower Court to try the above framed issues in accordance with law.  In the
circumstances, the lower Court is directed to dispose of the matter as early as
possible, preferably within a period of six (6) months from the date of receipt
of the records from this Court without being influenced by any of the
observations made supra.  Since the matter is remanded to the lower Court, both
the parties are directed to appear before the lower Court on 01st November 2012.
However, in the circumstances, no costs.

______________________  
B. CHANDRA KUMAR, J.    
Date:   01st October 2012

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Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.