Judgment

SUBBA RAO, J. : This appeal by certificate raises the question whether the High Court went wrong, in the circumstances of the case, to give a decree for specific performance of an agreement to sell in favour of the plaintiff.

2. The facts may be briefly stated: On August 23, 1954, at 10 a. m. defendants 1 and 2, through their Auction Agent, defendant 3, advertised and put their plots Nos. 1 to 4 situated in Narayanguda opposite to Deepak Mahal Theatre to public auction. In regard to plots Nos. 2 and 3 the plaintiff offered the highest bid of Rs. 12,000. He wanted to purchase the plots for the purpose of starting his business. When the plaintiff tendered one fourth of the sale price as earnest money in accordance with the terms of the auction, the defendants unlawfully refused to accept it. On August 30, 1954, the plaintiff gave notice to the 3rd defendant and sent copies thereof to the other defendants calling upon them to obtain from him the one-fourth amount of the sale price as earnest money within 24 hours and pass a receipt therefor and accept the balance of the auction price within a period of one week thereafter in accordance with the conditions of the auction sale and to execute a sale-deed duly registered in his favour. Defendants 1 and 2 did not give any reply to the said notice. The plaintiff filed the suit in the Court of the 4th Additional Judge, City Civil Court, Hyderabad, on April 18, 1955, for directing the defendants, inter alia, to execute the sale-deed in his favour. Defendants 2 and 3 in their written-statement admitted that there was an auction sale and that plaintiff was the highest bidder; but the 1st defendant, on the other hand, denied that there was any final bid or that it was accepted. He further stated that he gave up the idea of selling the plots and that after obtaining the necessary permission from the Municipality he began to build shops on the said plots. The City Civil Court Judge held that the suit plots were knocked down at the auction in favour of the plaintiff and that the 1st defendant refused to take the earnest money. He further held that though the plaintiff gave notice as early as August 30, 1954, to the defendants, he did not take any steps to enforce his contract and that though he knew of the construction a couple of months before he filed the suit, he kept quiet and allowed the 1st defendant to complete his construction and, therefore, it was not a fit case where he could, in exercise of his discretion, give a decree for specific performance; instead he awarded to the plaintiff a sum of Rs. 500 towards damages. On appeal, a Division Bench of the Andhra Pradesh High Court, on a consideration of the evidence, came to the conclusion that the delay in filing the suit was due to the illness of the plaintiff s wife and also on account of the demolition of one of his houses by the Municipal Corporation, that he came to know for the first time on April 13, 1955, that the lst defendant was raising a structure on the suit plots and that without any loss of time within a few days thereafter he filed the suit. The High Court also found that the 1st defendant did not act bona fide inasmuch as he chose to rush head long in raising the structure evidently to defeat the claims of the plaintiff. On those findings, the High Court held that the Trial Court went wrong on principle in exercising its discretion in favour of the defendants and in refusing to grant a decree for specific performance in favour of the plaintiff. In the result, the High Court set aside the decree of the Trial Court and gave a decree for specific performance in favour of the plaintiff on his depositing a sum of Rs,12,000 together with stamp papers and registration charges within a month from the date of the decree. It may also be mentioned that the learned counsel for the plaintiff made an offer that his client was willing to pay a sum of Rs. 14,750 towards the cost of the building put up by defendants 1 and 2 on the