IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Present: Sri V.Srinivasa Rao VI Additional District Judge, Visakhapatnam
Thursday, the 30th day of April, 2026
APPEAL SUIT No. 94/2015
Between:
1) V.Udaya Bhaskara Lakshmi Narasimham, S/o Kamaraju, Hindu, Aged 62 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam.
2) Smt.V.Braharambika, W/o Udaya Bhaskara Lakshmi Narasimham, Hindu, Aged 59 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam.
…... Appellants / Defendants
AND: Kum. Odisela Lakshmi, D/o Late Arjuna Rao, Hindu, Aged 30 years, residing at Door No.4-168, Vidyanagar, Gopalapatnam, Visakhapatnam.
…... Respondent / Plaintiff
THIS APPEAL AGAINST THE DECREE AND JUDGMENT DATED
30.07.2014 PASSED BY THE LEARNED IV ADDITIONAL SENIOR CIVIL
JUDGE, VISAKHAPATNAM IN O.S.No. 1542/2006.
O.S. No. 1542/2006
Between
Kum. Odisela Lakshmi, D/o Late Arjuna Rao, Hindeu, Aged 30 years, residing at Door No.4-168, Vidyanagar, Gopalapatnam, Visakhapatnam. ….Plaintiff AND:
1) V.Udaya Bhaskara Lakshmi Narasimham, S/o Kamaraju, Hindu, Aged 62 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam.
2) Smt.V.Braharambika, W/o Udaya Bhaskara Lakshmi Narasimham, Hindu, Aged 59 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam. .…Defendants This Appeal has come up on 09.04.2026 for final hearing before me in the presence of Sri P.A.K.Kishore, Advocate for the Appellants/Defendants and of Sri J.V.Ramakrishna, Advocate for Respondent/Plaintiff and upon hearing their arguments and the matter having stood over for consideration, till this day, this court delivered the following:
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J U D G M E N T
1.This appeal is directed against the Decree and Judgment dated 30.07.2014 rendered in OS. No.1542/2006 on the file of IV Additional Senior
Civil Judge’s Court, Visakhapatnam, whereby whereunder the learned IV
Additional Senior Civil Judge, decreed the suit filed by the plaintiff for specific
performance of agreement of sale dated 13.12.2004.
2.For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit before the learned Trail Court i.e., Plaintiff and
Defendants.
3.The contentions of the plaintiff as seen from the plaint, in brief, are as follows:
(a). The plaint schedule property is an extent of 121 Sq.Yards bearing
Door No.4-204 & 4-205, situated at Vidyanagar, Gopalapatnam,
Visakhapatnam with specific boundaries. The 1st Defendant is husband of the 2nd Defendant. The 2nd defendant being the owner of the plaint schedule property, the 1st and 2nd defendants jointly agreed to sell the plaint schedule property for Rs.4,20,000/- and executed an Agreement of Sale on 13.12.2004 in favour of the plaintiff on receipt of Rs.10,000/- towards advance. Subsequently, on 17.02.2005, the Defendants received
Rs.1,00,000/- and the same was endorsed on the back of the Agreement of
Sale by the 2nd Defendant. Thereafter, the plaintiff requested the defendants for several times demanding the defendants to execute the registered sale deed. The plaintiff is ready and willing to pay the balance sale consideration with registration charges and that the defendants finally asked the plaintiff to get ready on 19.02.2005 for registration, for which the plaintiff borrowed an amount of Rs.4,20,000/- with interest at 24% per annum to meet the balance sale consideration registration charges. Though, the plaintiff waited for the defendants for execution of the Sale Deed on 19.02.2005 and 10.03.2005, but the Defendants did not turn up due to in different attitude of the defendants. The plaintiff is incurring unnecessary expenditure for Rs.8,000/- 3 per month towards interest. Then the plaintiff got issued legal notice dated 09.05.2005 demanding the defendants to execute the registered sale deed on receipt of balance sale consideration. On receipt of the same, the defendants did not give any reply, but filed Caveat Petition and also sent a reply notice dated 18.09.2006 with false allegations after lapse of one year three months.
b).It is further stated in the plaint that the defendants in order to avoid registration of the sale deed and got filed the suit in O.S.No. 985/2005 on the file of the I Additional Junior Civil Judge, Visakhapatnam through one of the neighbours of the defendants by name Lakkaraju Ramadas and obtained interim injunction. The Defendants have no intention to perform their part of the contract, though the plaintiff is ready and willing and further the defendants is causing mental agony. The plaintiff has deposited the balance sale consideration and registration charges in the State Bank of
India, Main Branch, Visakhapatnam.
Hence, the suit.
4.The defendants filed written statement inter alia contended that the
Defendants got issued reply notice with true facts and further asked the plaintiff to withdraw the Sale Agreement dated 13.12.2004 on receipt of advance sale consideration of Rs.1,10,000/- from the defendant within 7 days on receipt fo the reply notice, failing which, the advance amount of
Rs.1,10,000/- will be forfeited. Since the plaintiff did not respond to the reply notice and that the amount of Rs.1,10,000/- was forfeited, but the plaintiff filed the suit to create troubles to the defendants and to grab the plaint schedule property.
b)The Defendants are senior citizens, to shift their residence from
Gopalapatnam to Allipuram or Sithammapeta by purchasing a new house where the daughter and relatives have been residing, the defendants executed Ex.A1/Agreement of Sale, but the plaintiff not ready within six months from 13.12.2004. On repeated requests made by the defendants, the 4 plaintiff postponed and paid an amount of Rs.1,00,000/- on 17.02.2005 by requesting time for 10 to 15 days to pay the balance sale consideration. The plaintiff failed to perform his part of the contract. The neighbours to the defendants by name Lakkaraju Ramadas filed the suit in O.S.No. 985/2005 on the file of the I Additional Junior Civil Judge, Visakhapatnam against the defendants with false allegations for permanent injunction and also from demolishing the wall or any other structures in the schedule property including confirming the rights to draw water from the well to prospective buyers of the defendants, in which he also filed I.A.No. 312/2005. In the said suit, he filed counters and written statement. After receipt of the notices in the suit in O.S.No. 985/2005, the defendants informed to the plaintiff about the suit filed by the Lakkaraju Ramadas and expressed their idea to withdraw from sale transaction, for which the plaintiff also expressed their consent, as such the plaintiff is not entitled for even return of the advance amount as it is forfeited. As per their understandings, the defendants decided to return back the advance amount and requested the plaintiff to receive the amount and return back the original agreement of sale in the presence of one Tetali
Prasad, who is the son-in-law of the defendants and his friend name
Chowdary Hirambo and the suit agreement of sale was cancelled.
c)Though, the defendants requested the plaintiff to receive the advance amount, which was kept in the Central Cooperative Bank,
Gopalapatnam and to return back the original agreement of sale dated 13.12.2004, the plaintiff not cooperated to the defendants. The plaintiff taking advantage of the agreement of sale dated 13.12.2004 got issued legal notice
dated 09.05.2005. After receipt of the said legal notice, the defendants
approached the plaintiff and questioned his attitude that even after cancellation of the agreement of sale issuance of the legal notice, for which the plaintiff stated that mistakenly had issued the said notice and informed to the defendants that not to give any reply notice. But the plaintiff mischievously by suppressing the true facts and filed the suit. The 5
Agreement of Sale dated 13.12.2004 was cancelled and it is not drafted under Schedule I/A Article 47(a) of A.P Stamp Act and Section 17 G of
Registration Act. The Agreement of Sale dated 13.12.2004 is not enforceable, but the plaintiff filed the suit with false allegations and there is no cause of action to the suit. The suit is barred by limitation and the plaintiff not paid proper required Court Fee and that sought for dismissal of the suit.
5.Based on the above pleadings, the learned I Additional Senior Civil
Judge, Visakhapatnam, had framed the following issues:
1. Whether the suit agreement of sale is true valid and binding on the defendants?
2. Whether the plaintiff is entitled for specific performance of contract of sale as prayed for in the suit?
3. Whether the suit is in time?; and
4. To What relief?
6.During the trial before Trial Court, on behalf of the plaintiff P.Ws.1 to 4 were examined and got marked Exs.A1 to A8. On behalf of defendants,
D.Ws.1 and 2 were examined and got marked Exs.B1 and B2.
7.After considering both oral and documentary evidence, the learned
Trial Court decreed the suit with costs.
8.Feeling aggrieved by the said Judgment and Decree of the learned
Trial Court, the defendant preferred the present Appeal with the following grounds of the appeal that:
i.that the trial Court failed to observe the legal aspect that the plaintiff failed to averred in the plaint that it is specific performance is part of contract; ii.that the trial Court ought to have seen terms of Ex.A1 and the conduct of the parties at the time of entering into the contract and other circumstances, but decreed the suit; 6 iii.that the trial Court ought to have seen that the plaintiff was not ready to perform his part of contract, but deposed that he was ready, basing on it, the trial Court decreed the suit instead of dismissal; iv.that the trial Court ought to have seen that the suit is barred by time; v.that the trial Court ought to have accepted the evidence of D.Ws.1 and 2 regarding cancellation of Ex.A1 and ought to have dismissed the suit; vi.that the trial Court decreed the suit by violating the settled principles of law regarding specific performance; and vii.that the trial Court erred in decreeing the suit on some conjectures and surmises while dealing with the evidence of P.Ws.1 to 4, D.Ws.1, 2,
Exs.A1 to A8 and Exs.B1 and B2.
9.On the other hand, the learned counsel for the Respondent/plaintiff in toto supported the judgment of the Trial Court.
10.Heard both sides. Perused the record.
11.Concerning the pleadings in the suit, the findings recorded by the trial
Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination:
1. Is the trial Court justified in granting relief of specific performance of the sale agreement, dated 13.12.2004?
2. Does the judgment passed by the trial Court need any interference?
POINTS NO.1 AND 2:
12.The plaintiff filed the suit for specific performance of contract, the defendant executed the registered sale deed on receipt of balance sale consideration of Rs.3,10,000/- and handed over possession, failing which it may be done under due process of law or for return of the advance amount of Rs.1,10,000/- with interest.
13.After conducting the trial, the trial Court decreed the suit basing on the decree and judgment the defendants preferred this appeal.
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14.The gist of the case of the plaintiff is that the Defendants 1 and 2 executed Ex.A1/Agreement of Sale on receipt of advance amount of
Rs.1,10,000/- on 13.12.2004, thereafter the plaintiff paid an amount of
Rs.10,000/- on 17.02.2005 and the same was endorsed under Ex.A1 and
Ex.A2. Thereafter, the Defendants not come forward to register the sale deed on receipt of balance sale consideration, the plaintiff got issued
Ex.A3/Legal Notice dated 09.05.2005 and the same was served to defendants under Exs.A4 and A5, but the Defendants instead of issuance of reply notice or execution of the Sale Deed filed Caveat Petition, the same was served to the plaintiff under Ex.A6, thereafter the Defendants got issued
Ex.A7/Reply Notice dated 18.09.2006 with false allegations. The plaintiff is ready and willing to perform her part of contract and she has sufficient funds in her SB Account shown in Ex.A8/Bank Passbook.
15.The defendants contention is that the plaintiff after obtaining the
Ex.A1/Agreement of Sale not ready with the balance sale consideration and that the sale advance amount is forfeited. The neighbours of the defendants by name Lakkaraju Ramadasu filed suit in O.S.No.985/2005 before the
Hon’ble I Additional Junior Civil Judge’s Court, Visakhapatnam with false
allegations and also filed I.A.No.312/2005 for ad-interim injunction. After receipt of the Court notices, the Defendants informed to the plaintiff that they have get withdraw the sale transaction as there was Court litigation. The
Ex.A1 was cancelled and amount was forfeited.
16.The undisputed facts are that, the plaintiff and defendants are residents of Gopalapatnam, Visakhapatnam. P.W2 is relative of P.W1,
P.Ws.2 to 4 are attestors and scribe of Ex.A1. P.Ws.1 to 4 filed their chief- examination affidavits reiterating the contents of plaint averments that the execution of Ex.A1 on 13.12.2004 on receipt of Rs.10,000/- by the defendants in the presence of attestors P.Ws.2, P.W3 and Scribe by P.W4.
The plaintiff also paid an amount of Rs.1,00,000/- under Ex.A2. D.W.2 is the son-in-law of the defendants.
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17. D.W1 filed his chief-examination affidavit stating the receipt of
Rs.10,000/- on the date of execution of Ex.A1 and advance amount of
Rs.1,00,000/- and further mentioned that the defendants decided to return back the total advance amount of Rs.1,10,000/- by the plaintiff by returning the original agreement of sale dated 13.12.2004 in the presence of P.W2 and one Chowdary Hiramb and the plaintiff agreed to cancel the agreement of sale under Ex.A1. The plaintiff never showed any readiness and willingness to pay the balance sale consideration and postponed the same.
18.As seen from the cross-examination of D.W1 at the time of execution of Ex.A1, he received Rs.10,000/-, thereafter received Rs.1,00,000/- from the plaintiff and the same was endorsed on the back of Ex.A1 under Ex.A2. He did not issue any notice to the plaintiff to pay the balance sale consideration by showing his readiness for registration. Thereafter she (D.W1) field Caveat
Petition before the Court and the notice was served on plaintiff under Ex.A6, in which the fact of filing of suit by Ramadasu was not mentioned. She received original of Ex.A3/Legal Notice from the plaintiff and one
Sriramadas, who was the neighbour of the defendants filed suit against them for right of way in the schedule property. Thereafter she got issued
Ex.A7/Reply Notice dated 08.09.2006. She did not send any notice to the plaintiff informing about the decree of the suit filed by the Ramadas. She did not know whether any agreement was filed before the Lok Adalat,
Visakhapatnam along with the plaintiff during the pendency of the suit in
O.S.No.985/2005 on the file of I Additional Junior Civil Judge,
Visakhapatnam. The plaintiff was not present at the time of cancellation of
Ex.A1 and the same was also not reduced into writing.
19.Ex.A1 is the Agreement of Sale dated 13.12.2004 in between the plaintiff and defendants in respect of the plaint schedule property. On the date of execution of Ex.A1, the defendants received Rs.10,000/- from the plaintiff out of sale consideration of Rs.4,10,000/- and the remaining amount has to be paid within six months from the execution of the registered sale 9 deed. Ex.A1 also contains the signatures of the attestors, defendants 1 and 2 and P.W3. Ex.A2 is the Endorsement on the back of Ex.A1 at third page that on 17.02.2005, the defendant No.1 received Rs.1,00,000/- towards advance, in which the 1st defendant made her signature and the 2nd defendant is also attested along with P.W3 and one K.Appalakonda. Ex.A3 is
Legal Notice dated 09.05.2005 disclosing the facts in the plaint. Exs.A4 and
A5 are the Acknowledgement Cards to show that the Defendants 1 and 2 received Copy of Ex.A3/Legal Notice. Ex.A6 is the summon showing the
Caveat Petition was filed.
20.The First Appellate Court, being the final Court of fact, has jurisdiction to reverse or affirm the trial court's findings. Considering the nature and scope of the First Appellate Court in Vinod Kumar v. Gangadhar in
AIRONLINE 2014 SC 261 , the Hon'ble Supreme Court held at para no. 19 that:
19. Again, in B.V. Nagesh v. H.V. Sreenivasa Murthy in (2010) 13 SCC 530, this Court, taking note of all the earlier judgments of this Court, reiterated the principle as mentioned above with these words: “3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
21.The appellate Court has jurisdiction to reverse or affirm the trial court's findings. The first Appeal is a valuable right of the parties, and unless restricted by Law, the whole case is therein open for rehearing both on questions of fact and Law. The Judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings 10 supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for the decision of the appellate Court.
Sitting as a court of first Appeal, it was the duty of the Court to deal with all the issues and the evidence led by the parties before recording its findings.
22.Normally, appreciation of the evidence by the trial Court is only interfered with by the Appellate Court if such appreciation of evidence appears to be absurd or there has been a serious challenge to such exercise. This proposition of Law has been so firmly settled that it does not require any reiteration by citing any authority.
23.Given the settled legal position outlined above, I now re-appreciate the evidence on record, taking into account the evidence adduced by both parties, to assess the correctness of the findings recorded by the trial Court.
24.In order to fully appreciate on whom the burden of proof lies, it will be desirable to set out Sections 104, 105 and 106 of Bharatiya Sakshya
Adhiniyam, 2023 which reads as follows:
104. Burden of proof. “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”.
105. On whom burden of proof lies.
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”.
106. Burden of proving fact especially within knowledge.
“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”.
In this context, the as per the settled principles of the Hon'ble Apex Court, the burden of proof lies upon the persons to prove a fact, and it never shifts, but the onus of proof shifts. But, the initial burden of proving a prima facie case in his favour is cast on the Plaintiffs; when he gives such evidence as will support a prima facie case, the onus shifts to the Defendants to adduce 11 rebutting the evidence to meet the case made out by the Plaintiffs. As the case continues to develop, the onus may shift back again to the Plaintiffs.
25.The initial onus of proof and the legal burden is on the Plaintiff to establish the truth, validity and binding nature of the suit agreement to sell.
On behalf of the Plaintiff, she testified as PW.1, on behalf of the Defendants 1 and 2, the 2nd Defendant appeared as DW.1. Both parties reiterated their respective pleadings in their chief examinations. The evidence adduced establishes that the the 2nd Defendant is the rightful and absolute owner of the property in question, having purchased it from Parvathavardhani Maha
Lakshmi through a registered sale deed vide document No.88/1973 dated 24-5-1973. The Plaintiff also examined the attestors as Pws. 2/K.Appala
Konda and 3/N.Mariyadas, whereas the scribe/K.Rajanna of Ex.A1 as Pw.4, and the Defendant's son-in-law., T.Prasad, who testified as DW.2. Pws.2 to 4 supported the Plaintiff's case in all aspects. However, DW.2 corroborated the Defendant's case.
26.PWs.1 to 3 testified that on 13.12.2004, defendants offered to sell the schedule property to the Plaintiff for Rs.4,20,000/- under Ex.A1 agreement of sale. According to their evidence, PW.1 accepted the offer and an amount of Rs.10,000/- paid towards advance to the defendants. Upon receipt of the payment, the Defendants executed Ex.A.1, the agreement in favour of
Plaintiff in the presence of PWs.2 and 3 and scribed by PW.4. PW.1 further testified that after execution of Ex.A1 on 17.02.2005, the plaintiff paid
Rs.1,00,000/- and waited at SRO office with remaining balance and charges on 19-2-2005 and 10.03.2005, but the defendants are not ready as per the terms of Ex.A1/Agreement of sale. In contrast, DW.1 testified admitting the execution of Ex.A1/Agreement of Sale, receipt of Rs.1,00,000/- under Ex.A2.
Further, Dws.1 and 2 contended that the plaintiff was not ready with terms and conditions in the agreement of sale and that it was cancelled and amount was forfeited.
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27.The trial Court at the end noted that though the plaintiff is ready and willing to perform her part of contranct, the defendants failed to discharge their part of contract.
28.At this juncture, this Court inclined to appreciate the evidence on record with facts. The oral evidence available is P.Ws.1 to 4, D.Ws.1, 2 and
Exs.A1 to A8, Exs.B1 and B2. From the oral evidence of P.Ws.1 to 4, D.Ws.1 and 2, there is no dispute on Exs.A1, A2, receipt of Exs.A3. The dispute is with regard to the readiness and willingness on the part of plaintiff.
29.As seen from Ex.A1 dated 13.12.2004, the plaintiff has to pay the balance of consideration within six months i.e., on 12.05.2005. But the plaintiff well in advance i.e., on 17.02.2005 paid Rs.1,00,000/- to the defendants and the same was also endorsed on the back of Ex.A1 as Ex.A2.
At Ex.A2 the 1st Defendant and 2nd defendant made their signatures. The scribe of Ex.A2 is the 2nd defendant. Thereafter, on 09.05.2005 the plaintiff got issued Legal Notice to the defendants demanding them to receive the balance sale consideration and also to execute Registered Sale Deed. On the date of execution of Ex.A1 the plaintiff paid Rs.10,000/- out of
Rs.4,20,000/-, thereafter on 17.02.2005 paid Rs.1,00,000/-, the remaining balance sale consideration is Rs.3,20,000/- only. The neighbour of the defendants by name Ramadasu filed suit in O.S.No.985/2005 on the file of th
Hon’ble I Additional Junior Civil Judge, Visakhapatnam against the
defendants for grant of permanent injunction and obtained decree on 08.12.2008. The defendants filed caveat under Ex.A6 on 16.05.2005 against the plaintiff in respect of the schedule property. The caveat petition dated 16.05.2005 is subsequent to Ex.A3/legal notice dated 09.05.2005 got sent by the plaintiff, but the said caveat petition not contains the facts in Ex.A3/Legal
Notice. After the lapse of long time the defendant got issued Ex.A7/Reply
Notice dated 18.09.2006 with the contents of the written statement stating that the filing of the suit by their neighbour Ramadas, cancellation of 13
Ex.A1/Agreement of Sale and requesting to take back the advance amount and also to return back the original of Ex.A1/Agreement of Sale.
30.At this stage, this Court inclined to refer the limitation and tabulation of the Exhibits to show that whether the plaintiff is ready and willing to perform of her part of contract.
31.On the point of limitation this Court inclined to refer the judgment of his
Lordship in Usha Devi & others vs. Ram Kumar Singh & others in CIVIL
APPEAL NO. 8446 OF 2024 (Arising out of SLP (C) No.2997 OF 2023) of
Hon’ble Supreme Court of India, wherein their Lordships held that:
“The limitation under Article 54 of the Limitation Act,
1963 for instituting a suit for specific performance of
a contract would be three years from the date fixed
for the performance, or, if no such date is fixed,
when the plaintiff has notice that performance is
refused” Article 54 of the Limitation Act, 1963 is reproduced hereunder:
“ 54.
For SpecificThree Years The date fixed for performance of athe performance, contractor, if no such date is fixed, when the plaintiff has notice that performance is refused.
32. At this stage it would be apt and appropriate to tabulate the list of dates and events which are not in dispute and they are tabulated herein below:
TABULATION:
Sl.No. Event Date 1 Execution of agreement to sell (Ex.A1) 13.12.2004 2 Advance Sale Consideration of Rs.10,000/- paid on the date of execution of Agreement of Ex.A1/Agreement of Sale.
14 3 Payment of further Rs.1,00,000/- (Ex.A2)17.02.2005 4 Last date to get the sale deed registered according to agreement to sell 12.05.2005 5 Ex.A3/Legal Notice of the Plaintiff to the Defendant 09.05.2005 (Received by Defendants under Exs.A4 & A5) 6 The Defendants filed Caveat Petition (Ex.A6) 16.05.2005 7 The Defendants sent Reply Notice under Ex.A7 on 18.09.2006 8 The neighbour of the Defendants filed suit in O.S.985/2005 08.12.2008 and obtained decree (Exs.B1 and B2) 8 Filing of suit 01.12.2006
At the outset, it requires to be clarified and made clear that in the instant case the amendment brought to the Specific Relief Act by Act 18 of 2018 would be inapplicable. The amendment is prospective in nature and cannot be applied to those transactions which took place prior to amendment. In order to prove that the plaintiff is entitled to the specific performance as per the law existing prior to amendment, the plaintiff has to establish.
a. that a valid agreement of sale was entered into by the
Defendant in favour of the plaintiff; b. that the defendant committed breach of the agreement; and c. that he was always ready and willing to perform his part of the obligations in terms of the agreement.
At this juncture, this Court inclined to refer the provision under Section 16 of the Specific Relief Act, 1963, which provides certain bars to the relief of specific performance.
“16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-
a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or 15
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant. Explanation- For the purpose of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” READINESS AND WILLINGNESS
NOT PROVED
In order to obtain a decree for specific performance, the plaintiff must aver and prove that he has performed his part of the contract and has always been ready and willing to perform the terms of the contract which are to be performed by him. Section 16(c) of the Specific Relief Act mandates ‘readiness and willingness’ of the plaintiff to be averred and proved and it is a condition precedent to obtain the relief of specific performance.
There is a distinction between the terms ‘readiness’ and ‘willingness’.
‘Readiness’ is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. ‘Willingness’ is the conduct of the party.
33.In the instant case, it would emerge that the plaintiff had been able to successfully prove the Ex.A1/Sale Agreement dated 13.12.2004 on which date Rs.1,10,000/- was paid by the plaintiff to the Defendant.
34.At this juncture, this Court referred the judgment a case in between
M/S Siddamsetty Infra Projects Pvt. Ltd vs Katta Sujatha Reddy
reported in [2024 (6) ALT 109 (SC)], wherein it was held at Para Nos.40, 41, 42 and 52
40. The judgment of this Court in paragraph 67 only refers to the deposition of DW-1 without referring to her cross- examination or the fact that the respondents did not challenge 16 the finding of the Trial Court on this aspect. This is another error apparent on the face of the record.
41. Having held that the basis of the reasoning of this Court on whether the petitioner was willing to perform the contract has an error apparent on the face of the record, we are required to decide the issue of whether the petitioner was ready and willing to perform the contract. We are of the considered opinion that the petitioner was ready and willing to perform the contract in terms of Section 16(c) of the Specific Relief Act. The first agreement to sell noted that the purchaser paid a sum of Rs.11,30,00 as earnest money. Subsequently, the petitioner paid Rs. 13,00,000 on the same day by cheque and paid another Rs. 5,00,000 by Demand Draft on 9 April 1997. If the petitioner was unwilling to perform the contract, he would not have paid nearly 75 percent of the sale consideration. Thus, the petitioner with the payment of the additional sum above the earnest money, has proved his readiness and willingness to perform the contract. Further, this aspect must be analysed in the backdrop of the explanation to Section 16(c) of the Specific Relief Act which states that if the contract involves the payment of money, it is not necessary that the plaintiff actually tenders the money. It cannot be concluded that the petitioner was not ready or willing to perform his part of the contract merely because the balance sale consideration was due to be paid.
42. Section 10, before the amendment in 2018 stated that the Court can exercise its discretion to award specific performance of contract where (a) there exists no standard for ascertaining the actual damage caused by the non- performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. The Explanation provided that unless there is anything to the contrary, the court shall presume that the compensation in money is not an adequate relief for the breach of a contract to transfer immovable property. There is nothing in the agreements to sell to rebut this statutory presumption. On an application of the facts to the principles in Sections 10 and 16 of the Specific Relief Act, we are of the considered opinion that this is a fit case for this Court to exercise its discretion to direct specific performance.
52. Having concluded that the errors apparent on the face of the record identified above go to the root of the reasoning on 17 both the issues of limitation and specific performance, we recall the judgment of this Court dated 25 August 2022. The judgment of the High Court dated 23 April 2021 is restored.
35.The main contention of the defendants is that the Ex.A1/Agreement of
Sale was cancelled and the amount was forfeited as the plaintiff was not ready and willing to perform her part of contract. The above mentioned table discloses that even before six months period mentioned in Ex.A1 the plaintiff paid Rs.1,00,000/- on 17.02.2005 and also got issued Ex.A3/Legal Notice to the defendant on 09.05.2005. The Defendants instead of cooperating to the plaintiff, got filed the suit in O.S.No.985/2005 through their neighbour
Ramdas, filed Caveat and the Reply Notice issued on 18.09.2006 i.e., after the lapse of more than one year to the six months period. Even to
Ex.A3/legal Notice dated 09.05.2005 the defendants did not give reply notice and the reply notice sent on 18.09.2006, which goes to show that the defendants are not ready and willing to perform their part of contract. The plaintiff also to show that she was ready with funds for getting registered sale deed filed Ex.A8/Bank Passbook of State Bank of India, Visakhapatnam.
36.To show that Ex.A1 was cancelled in the presence of the D.W2 and another one by name Chowdary Hirambo not filed any document. Even the defendants not mentioned the date of cancellation of the said Ex.A1. Even the defendants to show the cancellation of Ex.A1 not issued any notice and not return back the advance amount with interest. The defendants even not deposited the said advance amount of Rs.1,10,000/- with interest at the time of filing written statement, which goes to show that the defendants without any basis had taken the contention of cancellation of Ex.A1. Hence, the contention of the defendant is not tenable. The learned counsel for defendants submitted arguments stating that the plaintiff was not ready and willing and the same was not averred in the plaint. The plaintiff by her pleadings, evidence i.e., oral and documentary proved her readiness and willingness, but the defendant failed to discharge. After discharging the onus 18 on the plaintiff, the defendant failed to discharge their burden by proving the written statement contentions. As stated supra., on burden of proof, the defendants failed to discharge, as such the defendants have to suffer their case.
37.In view of the fact that Plaintiff had discharged the initial burden to prove the Ex.A.1 agreement of sale, Ex.A2/payment of Rs.1,00,000/-,
Ex.A3/legal notice, the onus shifted on the Defendant to controvert the readiness and willingness. Against this background fact, I do not find any illegality in the observation of the trial Court that the burden of proof was on the Defendant to prove the circumstances under which Ex.A.1 was cancelled and amount forfeited. In light of the evidence of PWs.1 to 4, as detailed above, this Court finds that the Defendant has failed to provide satisfactory or reliable evidence to undermine the testimony of these witnesses regarding the execution of Ex.A.1 by the Defendant and the payment of the consideration. The Defendant has not contested the receipt of the consideration amount as outlined in Exs.A1 and A2 The testimonies of
PWs.1 to 4 remain consistent in their account of the Defendant's execution of the Ex.A.1 agreement upon receipt of the agreed consideration. Although
PWs.1 to 4 were subjected to extensive cross-examination, nothing substantial was elicited that could discredit their evidence or suggest any inconsistencies. Moreover, PWs.2 to 4, who are attesting witness and scribe, have no apparent motive to provide false testimony that would harm the Defendant's interests. Therefore, the Defendant must demonstrate that the Ex.A1 was cancelled and amount was forfeited. No valid justification has been provided for cancellation of Ex.A1 and forfeiture of an amount. Their failure to provide convincing evidence in this regard weakens their position which supports the Plaintiff's case.
38.After a thorough and meticulous review of the deposition of DW.1, this
Court is firmly disinclined to accept the submission made by the Defendant's counsel on cancellation of Ex.A1 and forfeiture of advance amout of 19
Rs.1,10,000/-. Even in the absence of such admission in DW.1's cross- examination, this Court is unequivocally satisfied that Plaintiff has successfully established the execution of the sale agreement. This conclusion is substantiated by the testimony of one of the attesting witnesses, whose evidence lends significant credence to the Plaintiff's case.
Furthermore, the Defendant has failed to provide a coherent or satisfactory explanation regarding the circumstances under which the agreement was signed. In the absence of any plausible explanation from the Defendant, the
Court is compelled to draw an inference in favour of Plaintiff and treat this omission as a circumstance that further strengthens Plaintiff's stand.
39.The plaintiff has to stand on her own legs to establish that she has made a case for grant of relief of specific performance of a contract. The Act of 1963 provides certain checks and balances which must be fulfilled and established by the plaintiff before she is entitled to such a relief. The pleadings in a suit for specific performance have to be very direct, specific and accurate. A suit for specific performance based on bald and vague pleadings must necessarily be rejected. Section 16(C) of the 1963 Act requires readiness and willingness to be pleaded and proved by the Plaintiff in a suit for specific performance of contract. The said provision has been widely interpreted and held to be mandatory.
40.To consider the said submission, I have gone through the plaint averments. In the plaint, it is stated that Plaintiff has consistently demonstrated her readiness and willingness to perform her part of the sale agreement. Accordingly, she approached the Defendants on 19.02.2005 and 10.03.2005, requesting that the remaining balance be accepted so that the
Defendants may fulfill their obligations under the contract and execute a duly registered sale deed in Plaintiff's name.
41.Having regard to the facts and circumstances of the case and the conduct of the parties, I have no hesitation in holding that there was due 20 compliance with section 16(c) r/w Explanation of the Specific Relief Act on the part of the Plaintiff and that it was the Appellant who had raised a contention regarding the forfeiture of the advance amount.
42.Whether the Plaintiff was ready and willing to perform her part of the contract is required to be decided in light of the pleadings of the parties, evidence produced by her and her conduct. The thrust of the case set up by the Appellants/Defendants was that the advance amount is forfeited and cancelled Ex.A1/Sale deed. Since the Defendant's case is one of forfeiture of amount and cancellation of Ex.A1/Sale deed, the Plaintiff's case that she is ready and willing to perform her part of the contract is sufficient to infer that the Plaintiff is ready and willing to perform her part of the contract. Therefore, the argument raised by the learned counsel for the Appellants/Defendants that the Plaintiff has yet to provide evidence to prove her readiness and willingness to perform the contract is not tenable.
43.The trial Court's findings are accurate, and there is no need for interference. Having concluded that the judgment of the trial court results from proper appreciation of evidence, I find no illegality or arbitrariness in the impugned judgment. This Court views that the findings arrived at by the trial
Court are correct, and the Appellants/Defendants have shown no justifiable reasons for arriving at different conclusions except as indicated above.
Accordingly, the points raised in the Appeal are answered.
44. IN THE RESULT, the Appeal is dismissed without costs, by confirming the Decree and Judgment dated 30.07.2014 rendered in OS.No. 1542/2006 by the learned IV Additional Senior Civil Judge, Visakhapatnam.
Dictated to the Stenographer Grade-II, transcribed by him, corrected and
pronounced by me on this the 30 th day of April, 2026.
Sd/- Sri V.Srinivasa Rao
VI ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
21
APPENDIX OF EVIDENCE
-No Additional evidence is adduced on either side –
Sd/- Sri V.Srinivasa Rao
VI ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Copy to: The IV Additional Senior Civil Judge, Visakhapatnam along with Lower Court record.
22
Date of presentation : 23.12.2014 Date of filing : 19.06.2015
IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE
VISAKHAPATNAM
Present: Sri V.Srinivasa Rao VI Additional District Judge, Visakhapatnam
Thursday, the 30th day of April, 2026
APPEAL SUIT No. 94/2015
Between:
1) V.Udaya Bhaskara Lakshmi Narasimham, S/o Kamaraju, Hindu, Aged 62 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam.
2) Smt.V.Braharambika, W/o Udaya Bhaskara Lakshmi Narasimham, Hindu, Aged 59 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam.
…... Appellants / Defendants
AND: Kum. Odisela Lakshmi, D/o Late Arjuna Rao, Hindeu, Aged 30 years, residing at Door No.4-168, Vidyanagar, Gopalapatnam, Visakhapatnam.
…... Respondent / Plaintiff
THIS APPEAL AGAINST THE DECREE AND JUDGMENT DATED
30.07.2014 PASSED BY THE LEARNED IV ADDITIONAL SENIOR CIVIL
JUDGE, VISAKHAPATNAM IN O.S.No. 1542/2006.
O.S. No. 1542/2006
Between
Kum. Odisela Lakshmi, D/o Late Arjuna Rao, Hindu, Aged 30 years, residing at Door No.4-168, Vidyanagar, Gopalapatnam, Visakhapatnam. ….Plaintiff AND:
1) V.Udaya Bhaskara Lakshmi Narasimham, S/o Kamaraju, Hindu, Aged 62 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam.
2) Smt.V.Braharambika, W/o Udaya Bhaskara Lakshmi Narasimham, Hindu, Aged 59 years, Door No.4-206, Vidyanagar, Gopalapatnam, Visakhapatnam. .…Defendants This appeal is directed against the Decree and Judgment dated 30.07.2014 rendered in OS. No.1542/2006 on the file of IV Additional Senior 23
Civil Judge’s Court, Visakhapatnam, whereby whereunder the learned IV
Additional Senior Civil Judge, decreed the suit filed by the plaintiff for specific
performance of agreement of sale dated 13.12.2004.
The value of the appeal for the purpose of court fee and jurisdiction is Rs.4,20,000/- and a Court fee of Rs.6,626/- is paid under Section 49, r/w 39 of APCF and SV Act by way of challan No.20 dated 23.12.2014 in State Bank of Hyderabad, District Court Complex, Visakhapatnam.
This Appeal has come up on 09.04.2026 for final hearing before me in the presence of Sri P.A.K.Kishore, Advocate for the Appellants/Defendants and of Sri J.V.Ramakrishna, Advocate for Respondent/Plaintiff and upon hearing their arguments and the matter having stood over for consideration, till this day, this court doth order;
D E C R E E
(a) that the appeal be and the same is hereby dismissed without costs by confirming the Decree and Judgment dated 30.07.2014 rendered in OS.1542/2006 by the learned IV Additional Senior Civil
Judge, Visakhapatnam; and
(b) that there be no costs.
Given under my hand and seal of this court, this the 30th day of April, 2026
Sd/- V.Srinivasa Rao
VI Additional District Judge, Visakhapatnam
Memorandum of Costs
For Appellants/defendants: For Respondent/Plaintiff:
No costs memo filed on either side
Sd/- V.Srinivasa Rao
VI Additional District Judge, Visakhapatnam