MADDU BHIMARAO Vs. NELLEMILLI JAKARAIAH

JUDGEMENT

(1.) Facts in brief : The Appeal is filed as against the Judgment and Decree made in O.S.No.211/87 on the file of I Additional Subordinate Judge, Visakhapatnam dated 30-6-1992. The appellant is the unsuccessful plaintiff in the said suit. The suit was filed for the relief of specific performance of the contract of agreement of sale dated 23-11-1996. The learned Judge on the strength of the respective pleadings of the parties, having settled the Issues, recorded the evidence of P.W.1 and D.W.1 and marked Exs.A-1 to A-7 and Exs.B-1 to B-10 and recorded certain reasons and ultimately came to the conclusion that the appellant/plaintiff is not entitled to the relief of specific performance, but directed the respondent/defendant to return Rs.15,000/- to the appellant/plaintiff within one month from the date of decree. Aggrieved by the same, the unsuccessful plaintiff preferred the present Appeal.

(2.) Contentions of Sri Rajasekhar : Sri Rajasekhar, the learned Counsel representing the appellant had pointed out to the respective pleadings of the parties, the Issues settled and the findings recorded by the learned Judge and would comment that virtually there is no contest at all and when the respondent/defendant was ready and willing to execute the sale deed in stead of putting the parties on certain Issues which in fact do not arise at all in the facts and circumstances, the learned Judge could have proceeded under Order XV Rule 1 of the Code of Civil Procedure. The learned Counsel also had further pointed out to the oral and documentary evidence available on record and would contend that always the appellant/plaintiff had been ready and willing to perform his part of the contract. Despite the same, having recorded certain findings in favour of the appellant/plaintiff, the learned Judge totally erred in negativing the relief. The learned Counsel also pointed out to the contents of Ex.A.1 dated 23-11-1986 and would maintain that in the facts and circumstances of the case, even to record a finding that the appellant/plaintiff approached the Court in undue haste also cannot be sustained. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.

(3.) Contentions of Sri Ramalinga Swamy: Sri Ramalinga Swamy, the learned Counsel representing the respondent/defendant would contend that in a suit of this nature, the conduct of the parties to be taken into consideration. The respondent/defendant was hard pressed for money for the sake of family necessities and in fact he had been prompt in obtaining all the documents i.e., Ex.B.3, Ex.B.4 and Ex.B.5 and had been ready and willing to execute a sale deed but for reasons best known to the appellant/plaintiff the appellant/plaintiff alone was not coming forward. The learned Counsel also pointed out relating to the fluctuating prices and would maintain that at this distant point of time if specific performance to be ordered, the respondent/defendant would be put to great hardship. The learned Counsel also would maintain that in the light of Order XLI Rule 22 of the Code of Civil Procedure, the successful party is entitled to canvass any findings which may be in a way adverse to such party. The learned Counsel also pointed out that when the respondent/defendant expressed his willingness to execute the sale deed immediately, steps could have been taken by the appellant/plaintiff by depositing the amount and obtaining the sale deed and this conduct of postponing on the part of the appellant/plaintiff would go to show that he was not willing to perform his part of the contract. The Counsel also would maintain that the question is not whether the appellant/plaintiff had sufficient funds or not, but the question is whether he was willing to perform his part of the contract inasmuch as the learned Judge came to the conclusion that the appellant/plaintiff was not willing to perform his part of the contract and also taking into consideration the conduct of the parties inasmuch as this is a discretionary relief of specific performance which is being prayed for, the learned Judge recorded convincing reasons and ultimately dismissed the suit for the relief of specific performance and a direction was given to refund the amount and hence the decree granted by the trial Court in the facts and circumstances is just and proper and the findings being well appreciated findings on the strength of the oral and documentary evidence available on record, the said findings not to be disturbed in this Appeal.