KOMMISETTI VENKATASUBBAYYA Vs. KARAMSETTI VENKATESWARLU

JUDGEMENT

(1.) The plaintiff is the appellant. His filed a suit for specific performance of an agreement of sale Ex, A-1 executed by the 1st defendant on behalf of himself and the 2nd defendant on 24-4-1960 agreeing to sell a house site in Kavali. He paid Rs. 50.00 on the date of execution of the agreement and he avers that he paid a further sum of Rs. 1500.00 on 14-10-1960 receiving which the defendants put him in possession of the suit site. He says that he has been ready and willing to perform his part of the contract and called upon the defendants by a notice dated 10-10-1961 (Ex. A-13) to execute a sale deed after receiving the balance of the purchase money. 2nd defendant however sole the suit site to 3rd defendant under Ex. B-9 dated 14-11-1963 and the 3rd defendant in turn sold the same to 4th defendant under Ex. B-6 dated 21-5-62 (sic) 4th defendant also alienated the site in favour of 5th defendant under Ex.B-7 dated 27-9-1963. The 5th defendant trespassed on the land on 11-11-1963. The plaintiff has therefore filed the suit for specific performance and recovery of possession of the suit site. While the second defendant remained ex parte, 1st defendant pleaded that time was the essence of the contract and the plaintiff recessed the contract and that he therefore sold it to the 3rd defendant. Defendants 3 to 5 claimed to be bona fide purchasers for value without notice of the agreement of sale in favour of the plaintiff and prayed for the dismissal of the suit.

(2.) The trial Court, on a review of the evidence, found that time was not the essence of the contract that there was no rescission of the contract by the plaintiff, that defendants 3 to 5 re not bona fide purchasers for value, that plaintiff was put in possession of the suit site in pursuance of the agreement and that he was also ready and willing to perform his part of the contract. But it held that the plaintiff did not pay Rs. 1500.00 on 14-10-1960 as pleaded by him. In view of the above finding, the plaintiffs suit was decreed subject to the condition that he paid not only the balance of the consideration but also Rs.1500.00. Defendants 3 to 5 preferred an appeal as also the plaintiff. Both the appeals were disposed of by a common judgment. During the pendency of the appeal the 5th defendant dies and defendants 6 to 8 were brought on record as LRs The Lower appellate Court agreed with the finding of the trial court that the plaintiff did not pay Rs.1500.00. It also found, disagreeing with the trial court that the plaintiff was not willing to perform his part of the contract on and form October, 1961. In that view, it allowed the appeal preferred by defendants 3 to 5 and dismissed the plaintiffs appeal.

(3.) The plaintiff in the appeal contends that the finding of the lower court that the plaintiff was not ready and willing to perform his part of the contract on and form October, 1961 is perverse, In fact he had given a notice, Ex. A-13 dated 10-10-1961 expressing his readiness and willingness to perform his pat of the contract to which defendants did not choose to reply. The mere fact that he had withdrawn a sum of Rs.1400.00 from the bank and that his time of the institution of the suit does not warrant the conclusion that he was not willing to perform his part of the contract. It is not necessary to go into this question in view of my finding on the other grounds on which the decree of dismissal of the suit rests.