(per the Hon’ble Mr.Justice

D. Appa Rao)

This is an appeal preferred by the unsuccessful plaintiff against refusal of relief of specific performance of agreement of sale dated 28.5.1997, in O.S.No.492 of 1999, on the file of the III-Additional Chief Judge, City Civil Courts, Hyderabad, pertaining to the house bearing No.

1-4-732 / 35, Bakaram, Musheerabad, Hyderabad.

2. The case of the plaintiff, in brief, is that the plaint schedule house belongs to the defendant and he has taken it on rent at Rs. 1,500/- per month. Later, he entered into an agreement of sale Ex.B 1 dated 28.5.1997 for purchase of the property for Rs.10,89,000/- and paid an advance of Rs.2,72,250/-, evidenced under Ex.B2 receipt. He was always ready and willing to perform his part of contract, however the defendant has failed to perform his part of contract by not obtaining the clearance certificate from the Income Tax Department and in spite of negotiations held elder Bawar Mian, the defendant did not come and execute registered sale deed by receiving remaining balance sale consideration. When the defendant issued the notice, he gave a suitable reply. Therefore, he prayed for specific performance of the agreement, directing the defendant to execute a registered sale deed after receiving balance of sale consideration.

3. The defendant resisted the suit alleging that the plaintiff was the tenant on a monthly rent of Rs.1,500/- and that the tenancy was month to month. He entered into an agreement of sale for Rs.10,89,000/- and received an advance of Rs.2,72,250/-. The plaintiff did not pay rent or the balance sale consideration. On that he got issued a registered notice under Ex.A2 dated 30.6.1998, directing him to perform his part of contract by extending time from 1.7.1998 to 8.7.1998 and also directed the plaintiff to pay an amount of Rs.21,000/- being arrears of rent due by 30.6.1998. The plaintiff even refused to receive the notice evidenced under returned cover Ex.A3 He also sent it by certificate of posting under Ex.A4. Therefore, he again issued notice under Ex.A5 dated 16.7.1998 cancelling the agreement and terminating the lease. The plaintiff on receipt of it under Ex.A7 acknowledgment, got issued reply under Ex.A8 dated 22.8.1998, insisting the defendant to obtain income tax clearance certificate and that he was ready and willing to perform his part of contract. He gave a reply under Ex.A9 dated 28.8.1998 reiterating that the agreement was cancelled. He filed O.S.No.354 of 2001 for ejectment of the plaintiff from the suit house and for recovery of arrears of rent and damages. As a counter blast, plaintiff in turn filed O.S.No.492 of 1999 for specific performance of the agreement of sale.

4. Since both the suits were in between the same parties and in regard to the same subject matter, both are clubbed together and evidence was recorded in O.S.No.354 of 2001. The defendant in this appeal was described as plaintiff, in view of the fact that he was the plaintiff in O. S. No.354 of 2001.

5. It may be stated herein that the suit filed by the defendant in O.S.No.354 of 2001 for eviction of the plaintiff herein was decreed holding that he was in arrears of rent. He obtained possession, pursuant to the Decree. Therefore, we restrict our discussion to the suit O.S.No.492 of 1999 against which this appeal is preferred.

6. Upon the pleadings, the trial court framed the following issues:

(1) Whether the plaintiff is entitled for specific performance of agreement of sale as prayed for?

(2) To what relief?

7. The appellant herein has examined himself as DW.1 and two more witnesses as DWs.2 and 3 and filed Exs.B1 the suit agreement dated 25.5.1997 and Exs.B2 to B5 are exchange of notices. Refuting their evidence, the General Power of Attorney holder - son-in-law of respondent herein was examined as PW.1 and filed Exs.A1 to A10 i.e. G.P.A and notices exchanged between them.

8. The trial Court, in view of the fact that the suit was clubbed with suit