THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CITY CIVIL COURT APPEAL NO.06 OF 2002

JUDGMENT

This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) by the plaintiff against the judgment and decree, dated 19.04.2001, in O.S.No.33 of 1997 passed by the learned V Additional Chief Judge, City Civil Court, Hyderabad, wherein the suit filed by the plaintiff for Specific Performance of Agreement of Sale, dated 04.08.1989, was dismissed vide judgment and decree, dated 19.04.2001.

2. For the sake of convenience, the parties will be referred to as they are arrayed in the suit as plaintiff and the defendant.

3. The brief facts of the case are that the defendant is the absolute owner of house property bearing Municipal Door No.22-7-83, admeasuring 141.82 square yards, equivalent to 118.44 square metres, consisting of old structure of Ground, First and Second floors, Situated at Pathergatti, Hyderabad and he entered into an Agreement of Sale, dated 04.08.1989 with the plaintiff for sale of suit schedule property for a sale consideration of Rs.2,00,000/- and accordingly, he received an amount of Rs.20,000/- as advance sale consideration. It is not in dispute that at the time of execution of agreement of sale, the suit schedule premises is under the occupation of the tenants and as per Clause 6 of the said Agreement of sale, the defendant had given an undertaking to evict tenants from the subject premises within a period of 4 months and to execute a registered sale deed in favour of the plaintiff. The plaintiff approached the defendant in the 1^st week of December to comply with Clause No.6 of the Agreement of Sale and demanded for execution of registered sale deed in his favour by receiving the balance sale consideration. But, the defendant requested the plaintiff to extend the time for a further period of four months for evicting the tenants from the suit schedule property.

4. It is stated that meanwhile the plaintiff got an opportunity to go abroad for service and he informed the same to the defendant and requested him to execute a registered sale deed in the month of January, 1990. But the defendant failed to evict his tenants from the subject premises and did not choose to execute registered sale deed in his favour within the said period. The plaintiff left abroad in the 1^st week of February, 1990 by requesting the defendant to evict the tenants and register a sale deed in his favour by receiving balance sale consideration from his younger brother. But, the defendant did not do so.

5. It is further stated that taking advantage of absence of plaintiff, when the defendant is trying to sell the subject premises to third parties, the plaintiff’s GPA filed a suit in O.S.No.3363 of 1990 on the file of learned VII Assistant Judge, City Civil Court, Hyderabad, seeking perpetual injunction against the defendant and to restrain the defendant from alienating the suit schedule premises in favour of the third parties.

6. It is also stated that the plaintiff returned from abroad in the month of September, 1991 and in October, 1991 he approached the defendant and requested him to execute a registered sale deed in his favour by receiving the balance sale consideration. But the defendant did not execute the registered sale deed by receiving balance sale consideration. As the defendant violated the terms and conditions of the Agreement of Sale, dated 04.08.1989, the plaintiff issued legal notice, dated

04.11.1991 through his counsel. Having received the said notice, the defendant failed to issue any reply. The contention of the plaintiff is that he is having joint family and residing along with his four brothers in the adjacent house of the subject premises, therefore, he intends to purchase the subject premises house bearing No.22-7-82, which is attached to the suit schedule property. Hence, the suit.

7. The defendant filed written statement denying the averments made in the plaint and contended that he entered into