FACTS IN BRIEF:

The unseccessful plaintiff who could not get the relief of the Specific performance of the Agreement of sale in question at the hands of the learned Subordinate Judge, Kovvur in O.S.No.1 07 of 1987, had preferred this appeal.

2. The Respondent in the appeal who is the defendant in the suit, aggrieved by that portion of the decree ordering refund of Rs. 42,500/with some interest, had preferred the cross objections raising several grounds.

3. The learned Judge on respective pleadings of the parties, on appreciation of the evidence of P.Ws.1 and2, D.Ws. 1 to 3 and Exs.A-1 to A-8, came to a conclusion that the appellant as plaintiff had not approached the Court with clean hands and a person approaching the Court with a false version is not entitled to the relief of the Specific Performance and accordingly negatived the same. However, principally, on the strength of Ex.A-8, in which the rest of the amount payable had been specified by the respondent defendant on a mathematical calculation, the learned Judge came to a conclusion that it may have to be implied that the respondent, defendant had received Rs.42,500/- and accordingly, the decree was passed for refund of the same with interest thereon. Both the parties aggrieved by the judgment and decree and the findings recorded by the learned Judge had preferred the appeal and cross objections as well.

4. Submissions of Sri K.Sarva Bhouma Rao:

Sri K. Sarva Bhouma Rao, the learned counsel representing the appellant as plaintiff initially pointed outtoA.S.M.P.N0267 of2006 praying the relief to amend the plaint in O.S.No.107 of 1987 and also pointed out to A.S.M.P. No.370 of 2006 an application filed under Order 41 Rule 27 C.P.C. to receive the sale agreement dated 15-8-1983 as additional evidence. The learned counsel would maintain that though the production of the sale agreement dated 15-8-1983 may not be necessary, in the light of certain findings recorded by the learned judge, and also in the light of the reasons which had been narrated in the affidavit filed in support of the application it may be just and proper to receive the same as additional evidence. The learned counsel also would maintain that it is no doubt true to say that specifically the alternative relief had not been prayed for before the original Court but, however, a decree was made for a particular sum with interest thereon. The learned counsel would maintain that on the ground of equity, the learned Judge directed the refund of the amount. But, however, in as much as specific cross-objections had been preferred and the grounds had been specifically raised, amendment of the relief claiming alternative relief also had been filed.

5. The learned Counsel also while further making the submissions would contend that the proof or otherwise of the payment under the Negotiable Instruments Act, the promissory note in question, is of no consequence at all and it should be taken as if the full payment had been made. The Counsel had also explained the relevancy of Exs. A-4 ,and A-5 in the context of the payment towards the other agreement, which is being produced and the said agreement came into existence to ensure the payment. The learned counsel would also submit that the very fact that no suit has been filed in relation to the promissory note in question would go to show that the stand taken by the appellant-plaintiff is the correct stand. The learned counsel also would maintain that the recitals in the agreement of sale itself, are explanatory. When the payment of consideration had been specified, no further proof is necessary. In view of the same, the discretion to be exercised in granting specific performance in accordance with the settled principles, but not in an arbitrary manner. The learned counsel would also maintain that this Court as appellate Court can rectify the said finding and definitely grant the principal relief of specific performance itself. However, in the alternative, the learned counsel