Unsuccessful plaintiff of an original suit in 92/08 which was pending on the file of II Additional Senior Civil Judge at Gulbarga, has challenged the judgment and decree passed therein dated 12.12.2011.

2. The suit filed by the appellant-plaintiff before the trial court for specific performance of the contract has been dismissed after contest mainly on the ground of limitation. Therefore this appeal has been filed challenging the same on various grounds as set out in the appeal memo. Respondent herein is the sole defendant I the said suit. Parties will be referred to as plaintiff and defendant as per their ranking before the trial court.

3. The facts leading to the filing of O.S.92/08 are as follows:

a) The defendant was the absolute owner of the suit schedule property bearing No.16 measuring 125 feet x 100m feet situate at Jail Garden, Supermarket area, Gulbarga. He had entered into an agreement of sale with the plaintiff on 11.5.1989 agreeing to sell the same for a total consideration of Rs.13,50,000/- and received a sum of Rs.1,00,000/- by demand draft on 2.3.1989 drawn on State Bank of Hyderabad, Supermarket Branch, Gulbarga, and another Rs.12,00,000/- through demand draft. Only Rs.50,000/- was due to the defendant which was sent by the plaintiff. But defendant refused to receive the same. Plaintiff’s further case is that he was ever ready and willing to perform his part of the contract and requested the defendant to receive the same.

b) Instead of receiving the same, the defendant chose to file a suit in O.S.248/98 for declaration of title and permanent injunction before the Civil Judge (Junior Divn.), Gulbarga. But the plaint was returned under Order VII Rule 10, C.P.C. for representing the same before the proper court. Being aggrieved by the said order, defendant (who was plaintiff in O.S.248/98) filed M.A.13/04 before the III Additional Civil Judge (Senior Divn.), Gulbarga. The said appeal came to be dismissed upholding the order of rejection of plaint for representing the same before the appropriate court. Consequent upon the order dated 22.9.2005 passed in M.A.13/04, he did not represent the plaint.

c) Defendant herein, while seeking the relief of permanent injunction in O.S.248/98, had requested the court sought to restrain the defendant therein (present appellant) not to proceed with further construction or alienate the property. After the dismissal of M.A.13/04, plaintiff chose to file the suit for specific performance based on the agreement of sale dated 11.5.1989. The suit came to be resisted by the defendant on various grounds.

d) According to the defendant, the suit was not at all maintainable either in law or on facts and it was specifically barred by time. He had specifically denied the averment in regard to readiness and willingness of the plaintiff. According to him, he had already cancelled the agreement of sale dated 11.5.1989 by issuing notice dated 26.1.1998 and as such no agreement of sale was in existence to be enforced. With these pleadings, he had requested the trial court to dismiss the suit.

e) On the basis of the above pleadings, the trial court framed the following issues:

1) Whether the plaintiff proves he is ever ready and willing to p4rform his part of contract?

2) Whether defendant proves that sale agreement dated 11.5.1989 is already cancelled through notice dated 26.1.1998?

3) Whether defendant proves that suit is barred by time?

4) Whether plaintiff is entitled for suit reliefs as prayed for?

5) What order or decree?

Shakeel, the managing partner of the plaintiff firm is examined as PW1 and 3 more witnesses have been examined on his behalf. 38 documents have been got marked on his behalf. Though the defendant chose to file affidavit in lieu of examination-in-chief, he did not tender himself for cross-examination and hence his examination-in-chief has been eschewed from consideration.

f) After hearing arguments and perusing the records, the learned civil judge has answered issue nos.1, 2 and 4