CHAMARTI SURYAPRAKASARAYUDU Vs. ARARDHI LAKSHMINARASIMHA CHARLU

JUDGEMENT

(1.) Plaintiff is the appellant in this Second appeal. He brought the suit for specific performance of the agreement dated 4th November 1914, Exhibit A, executed in his favour by the 1st defendant.

(2.) Under Exhibit A the 1st defendant agreed to execute a sale deed for Rs. 400 in favour of the plaintiff within a month and to receive Rs. 360 out of the Rs. 400 (purchase money) after so executing the sale-deed, the remaining Rs. 40 having been received by the 1st defendant in advance.

(3.) The suit was brought on 2nd December 1907 just within three years from the expiry of the one month s time fixed by the agreement for the execution of the sale deed by the 1st defendant. The learned District Munsif gave a decree in plaintiff s favour. The learned Subordinate Judge on appeal, reversed the Munsif s decision and dismissed the plaintiffs suit with costs on the following findings and reasonings: (a) though the plaintiff made more than one statement that he was always ready to pay the balance of Rs. 360 as soon as the 1st defendant executed the sale-deed the probabilities is that the plaintiff never had Rs. 360 ready in his hands to make such a payment. (b) As the plaintiff delayed for nearly 3 years in bringing this suit for specific performance, he has been guilty of laches and hence the Court in its discretion ought to refuse the relief of specific performance prayed for by the plaintiff. (c) Not only has the plaintiff been guilty of laches but the said negligence of the plaintiff itself amounts to a waiver or abandonment of his right under the contract on the part of the plaintiff and hence also the plaintiff s suit ought to be dismissed. I think that the Subordinate Judge s finding of fact that the plaintiff had not got Rs. 360 ready with him to be paid whenever the 1st defendant was ready with a properly executed document is based upon no legal evidence. The Subordinate Judge may be entitled to find on the evidence on the record that the plaintiff has not proved that he would have been ready with the money if the sale-deed had been executed and tendered to him, but he was not entitled to go further and say that the plaintiff was not ready with the money as there is no evidence on the record to show that the plaintiff had not enough money with him on any of the occasions when the 1st defendant or the prior mortgagee, P.W. 4 applied to the plaintiff for payment of money to the plaintiff s 4th witness. The plaintiff cannot be said to have broken his part of the contract evidenced by Exhibit A until the 1st defendant had performed 1st defendant s own part of the contract, namely the execution of a proper sale-deed. Then as regards the alleged laches on the part of the plaintiff, he cannot be legally charged with any laches in the performance of his part of the contract till the 1st defendant has performed his own part of the contract. As the 1st defendant did not execute the sale-deed within the one month s period which he himself fixed in Exhibit A for the execution by him of the sale- deed and had not executed it even till the date of the suit, there could have been no laches on the plaintiff s part in the performance of his part of the contract.