JUDGMENT:

This appeal is filed against the Judgment and decree dated 31.12.2001 in O.S.No.27 of 1994, passed by the learned III-Senior Civil Judge, City Civil Court, at Secunderabad.

2. The suit vide O.S.No.27 of 1994 was filed by appellants/plaintiffs against respondents/defendants for specific performance of agreement of sale dated 09.07.1991. Appellant No.2/Plaintiff No.2 was examined himself as P.W.1 and also got examined P.W.2 on behalf of plaintiffs and marked Exs.A1 to A15 on their behalf. Respondent No.1/defendant No.1 was examined herself as D.W.1 and also got examined D.W.2 on behalf of the defendants, but no documentary evidence was adduced on their behalf. During the pendency of the proceedings, Plaintiff No.1 died, as such his L.R’s were brought on record as per the Order dated 19.01.1999, in I.A.No.151 of 1997. The trial Court after considering the evidence on record and arguments of both sides, dismissed the suit. Aggrieved by the said Judgment, plaintiffs therein preferred the present appeal.

3. The learned Counsel for the plaintiffs mainly contended that the trial Court erred in invoking the Doctrine of “Caveat Emptor (Buyer be Aware)” on the basis of registered sale deeds. He also contended that as the owner made false representation, the question of failure on the part of the appellant No.1 to perform his part of contract does not arise and it cannot be stated that plaintiff No.1 was not ready and willing to perform his part of contract. Respondent No.1 was having 2/3rd share in the suit schedule property, the trial Court ought to have decreed the suit to the extent of her share. Appellant No.1 was prepared to relinquish all claims in the minor’s share and had not claimed any compensation to that part. He further contended that appellant No.1 had paid Rs.90,000/- towards earnest money. As per Section 22 of the Specific Relief Act, relief regarding return/refund of earnest money cannot be granted unless it is prayed for. He intended to file an application for amendment of the plaint for alternative relief, but the trial Court observed that delay in filing the suit for specific performance, disentitles the appellants relief and is wholly misplaced. Therefore, requested the Court to set aside the Judgment of the trial Court.

4. Parties herein are referred as plaintiffs and defendants as arrayed before the trial Court for the sake of convenience.

5. The brief averments of the plaint are that defendants are the sole, absolute and exclusive owners of the property bearing No.12-1-157/1/A&B, comprising ground floor and first floor situated at Lalapet, Secunderabad, totally admeasuring 162 Sq.yrds. Defendants purchased the said property under two sale deeds i.e., document bearing No.2969 of 1985, dated 25.11.1985 and another document bearing No.303 of 1984, dated 03.02.1984, executed by one Natikar Amree in favour of all the defendants jointly. Defendants No.2 and 4 were minors as on the date of purchase of the property and they were represented by their mother i.e., defendant No.1. She executed an agreement of sale on 09.07.1991, in favour of plaintiffs agreeing to sell the entire suit schedule property to the plaintiff No.1 for a total sale consideration of Rs.3,90,000/- and plaintiff No.1 paid Rs.90,000/- on the date of execution of agreement as earnest money to defendant No.1 and she agreed to register the sale deed within one month by receiving a sum of Rs.2,10,000/- and for the remaining Rs.90,000/-, she agreed to withheld the registered title deed with her and plaintiff No.1 was allowed to pay the balance amount of Rs.90,000/- within two months, on that defendant No.1 will hand over the title deeds.

6. At the time of entering into agreement of sale and receiving the earnest money, neither defendant No.1 nor her husband and natural father of defendants No.2 and 3, who was a witness in the said agreement informed that defendants No.2 and 3 were minors and they were not added as parties to the agreement of sale though