C. Y. SOMAYAJULU, J.

( 1 ) DEFENDANT in O. S. No. 1212 of 1978 on the file of the court of the IX Assistant Judge, city Civil Court, Hyderabad, is the appellant in this second appeal. For the sake of convenience, the parties would hereinafter be referred to as they are arrayed in the trial court.

( 2 ) THE suit is filed for specific performance of Ex. A-1 agreement of sale, executed by the defendant in favour of the plaintiff in respect of the property specified in the schedule appended to the plaint, which would hereinafter be referred to as the suit property . The case of the plaintiff is that the defendant let out the suit property to him on a monthly rent of Rs. 150. 00, and subsequently, the defendant had on 2-8-1977 agreed to sell the same to him for rs. 10,0007- and received Rs. 7,000. 00 from him on that day and executed Ex. A-1 agreement in his favour, as per the terms of which he has to pay the balance amount of rs. 3,000/- at the time of registration of the sale deed, and can continue in possession of the suit property without paying rent, as purchaser in possession in part performance of the agreement of sale, and in spite of repeated requests, defendant neither received the balance sale consideration nor executed the sale deed. The case of the defendant is that she never, nor could have, entered into an agreement to sell the suit property to the plaintiff, as she is not the absolute owner thereof, and since it belongs to her and her six daughters, and that the plaintiff, in order to avoid the payment of rent to her, and to serve as a defence in the petition for eviction filed by her against the plaintiff and his uncle Satyanarayana who as the joint tenants in respect of the suit property must have brought Ex. A-1 into existence and since Ex. A-1 is a forged document plaintiff is not entitled to any relief from her.

( 3 ) BASING on the pleadings, the Trial court framed as many as seven issues for trial. In support of his case plaintiff examined his father as P. W. 1 and the attestors to ex. A-1 agreement as P. Ws. 3 and 4 and his paternal uncle Satyanarayana as P. W. 2 and marked Exs. A-1 to A-9 on his behalf defendant examined herself as D. W. 1 and her son-in-law as D. W. 2 but did not adduce any documentary evidence. The Trial Court decreed the suit; which was confirmed by the lower appellate court in A. S. No. 5 of 1987 by the judgment under appeal. Hence, this second appeal. Earlier this appeal was heard by a learned single Judge, who by his judgment dated 21-3-2002 set aside the judgments of both the courts below and remitted the case for reconsideration on the question whether clauses in Ex. A-1 gave an unfair advantage to any one of the parties, and whether discretion of Specific Relief has to be exercised under the peculiar circumstances of the terms of the contract . Aggrieved thereby plaintiff preferred Civil appeal No. 7121 of 2002 to the Supreme court. By its judgment dated 28-10-2002 the supreme Court set aside the judgment of the learned single Judge and remitted the appeal to this court for deciding it fully and finally here itself. That is how this appeal came before me.

( 4 ) THE point for consideration is whether the plaintiff is entitled to specific performance of Ex. A-1 agreement?

( 5 ) THE main contention of the learned counsel for the defendant is that both the courts below erred in not keeping in view section 19 (c) of the Special Relief Act, which lays down that in a suit for specific performance, the plaintiff should not only aver but should also prove his readiness and willingness to perform his part of contract, and contends that in this case though plaintiff averred in the plaint that he is ready to perform his part of contract, since he failed to go into the witness box, to swear that he is always ready and willing to perform his part of the contract, and offer himself for cross examination by the defendant, and thereby failed to establish his readiness and willingness to perform his

Click Here to Read the rest of this document