IMPORTANT POINTS
(1) Agreement to sell – Specific performance will not be ordered if contract itself suffers from some defect which makes contract invalid or unenforceable – Discretion of court will not be there even though contract is otherwise valid and enforceable.
(2) Pleadings – No amount of evidence, on a plea that is not put forward in pleadings, can be looked into to grant any relief.

JUDGMENT

This Appeal is filed by the appellant-defendant under Section 96 r/w Order XLI Rule 1 of Civil Procedure Code, 1908 assailing the judgment and decree passed by the learned Senior Civil Judge at Jangaon, Warangal District in OS No.111 of 2012, dated 30.06.2017.

2. Appellant is the defendant and the respondent is the plaintiff in OS No.111 of 2012.

3.1. Respondent-plaintiff has filed suit for specific performance of contract in respect of agreement of sale dated 31.08.2012.

3.2. It is stated in the plaint that the appellant-defendant is the absolute owner and possessor of suit schedule property admeasuring Acs.03-21 guntas in Survey No.156, situated at Laxmapuram Village and he offered to sell the same to the respondent-plaintiff, after deliberations the sale consideration is fixed at Rs.2,21,000/- per acre, respondent-plaintiff agreed to purchase the same and he paid an amount of Rs.4,500/- to the appellant-defendant as advance, agreement came to be executed on 31.08.2012.

3.3. As per the agreement of sale dated 31.08.2012, Rs.1,00,000/- has to be paid on 09.09.2012, half of the sale consideration has to be paid within one month and the remaining sale consideration to be paid in the month of December, 2012. Respondent-plaintiff in performance of his part of contract, approached the appellant-defendant to pay Rs.1,00,000/- on 09.09.2012, but he refused to receive the same. Respondent-plaintiff once again approached the appellant-defendant in the first week of October, 2012 and requested him to receive the sale consideration and register the sale deed but he refused to receive the amount. As the appellant-defendant is avoiding to perform his part of contract on one pretext or the other, the respondent-plaintiff has got issued legal notice on 16.10.2012 demanding the appellant-defendant to receive the balance sale consideration and perform his part of contract, as he failed to do so, respondent-plaintiff filed the suit.

4. Appellant-defendant filed his written statement and denied the contents of the plaint in toto and further contended that he has not executed any document in favour of the respondent-plaintiff and the alleged document is a created one.

5. The learned Trial Court has framed the following issues:—

1. Whether the agreement of sale dated 31.08.2012 is true, legal, valid and binding on the defendant?

2. Whether the plaintiff is ready and willing to perform his part of contract?

3. Whether the defendant has committed breach of contract?

4. Whether there is no cause of action to the plaintiff to file the suit?

5. Whether the plaintiff is entitled to specific performance as prayed for?

6. To what relief?

6. Respondent-plaintiff is examined as PW.1 and also examined PW.2-Kola Narsi Reddy and got marked Exs.A1 to A5. Appellant is examined as DW.1 and got marked Exs.B1 to B8. It is apt to mention here that Ex.A5 is marked in the cross-examination of DW.1.

7. The learned trial Court after analysing the evidence adduced by the parties and after going through the documents marked thereon has decreed the suit with costs directing the defendant (appellant herein) to execute regular sale deed by receiving the balance sale consideration within 2 months, failing which the plaintiff (respondent herein) shall proceed as per law.

8.1. Learned counsel for the appellant-defendant submits that the learned trial Court ought to have seen that in a suit for specific performance of contract, the burden lies on the respondent-plaintiff to prove execution of agreement of sale. But in the instant case, the respondent-plaintiff has not taken any steps to prove the agreement of sale and the Court below simply held that the appellant-defendant is the owner of the property, came to a conclusion that there was a proposal and offer to sell the suit schedule property by the appellant-defendant to the respondent-plaintiff.

8.2. The Court below ought to have seen that except the testimony of PW.2, there is nothing on record to show