Mere delay in filing a suit for specific performance does not necessarily mean that the plaintiff has abandoned or waived his right to specific performance.

S. DASARADHARAMA REDDY, J.

( 1 ) ONE Thippanna filed suit O. S. No. 43 of 1968 on the file of the Additional subordinate Judge, Ananthapur, against the appellant, for specific performance of the agreement dated 8-4-1965 (Ex. A-4) for sale of agricultural lands measuring Ac. 20-60 cents for Rs. 20,500/ -. He paid Rs. 1,000/- towards advance. The suit was filed on 8-4-1968 with a Court Fee of RG. 24/- and the deficit Court Fee of Rs. 1,402/- was paid on 11-4-1968. Pending suit, theplaintiff died and the respondents herein were brought on record as his legal representatives. As per the terms of the agreement, after the balance of the consideration is paid, the defendant has to execute the registered sale deed. As the defendant was postponing the registration of the sale deed, the plaintiff issued legal notice on 24-8-1965 (Ex. A-1) informing that he was ready and willing to perform his part of the contract and was ready to take the sale deed paying the balance consideration. The defendant replied on 5-9-1965 (Ex. A-2) stating that his father during his life time sold away the property to the family of Kondappa, Obanna and Pullappa and that in any event he is not sole owner and that his two brothers have shares. Alongwith the reply the defendant returned the amount of Rs. 1,000/- by crossed demand draft. The plaintiff returned the draft to the defendant saying that he would be enforcing his right in Court of law. As the defendant failed to perform his part of the contract, the plaintiff filed the suit stating that he is ready and willing to perform his part of the contract. The defendant filed written statement stating, inter-alia, that he is neither owner nor is he in possession of the suit land which was inam land originally, that he never applied for the grantof ryotwari patta after inamswere abolished, that the land belonged to the joint family consisting of his late father, himself and his two brothers, viz. , Dr. M. Krishna Murthy and Dr. M. S. Rao, that it was sold to the family of Kondappa, Obanna and Pullappa and that even assuming that patta was still in his name, his brothers also have shares in the property. It was also contended that the silence of the plaintiff from 5-9-1965 to 8-4-1968 goes to show that plaintiff s case is not true.

( 2 ) THE trial Court held that the suit agreement is vitiated by fraud and misre presentation, that there is no evidence to show mat the first plaintiff and after his death, plaintiffs 2 to 4 have been ready and willing to perform their part of the contract and hence are not entitled to the specific performance. The trial court also found that the suit is not barred by limitation. It gave its findings on other issues which are not relevant for disposal of this appeal. Accordingly, the trial Court dismissed the suit, but granted a decree for refund of Rs. 1,000/-with interest at 6% per annum from the date of suit. The plaintiffs filed appeal against this judgment and pending appeal, the defendant died and the appellants herein were brought on record as his legal representatives. The learned Single judge held that the suit is within time, having been filed on the last date of limitation and that the plaintiff has not abandoned his rights for specific performance. Regarding readiness and willingness of the plaintiff to perform his part of the agreement the learned Judge held that the fact that the first notice ex. A-1 was issued within 4 months of the execution of the agreement, dearly shows that in spite of the oral demands made several times, the defendant refused to receive the balance amount, mat in the reply Ex. A-2, there is no specific plea that the plaintiff was not ready and willing to perform his part of the contract, that in his evidence also D. W-1 never stated that the plaintiff was not ready to perform his part of the contract, mat merely because the suit was filed with deficit Court Fee, it cannot be said that the plaintiff came to the Court with unclean hands or that it is a

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