The High Court · 2025

Judgment

v THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA CITY CTVIL COURT APPEAL NO.O6 OF 2OO2 JIIDGMENT: This appeal is hled under Section 96 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.J by the plaintiff against the judgment and decree, dated 19.04.2001, in O,S.No.33 of l99Z passed by the learned V Additional Chief Judge, City Civil Court, Hyderabad, wherein the suit f,rled by the plaintiff for Specific Performance of Agreement of Sale, dated 04.08.1989, was dismissed vide judgment and decree, dated 19.O4.20O1.

2. For the sa-ke 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-a3, admeasuring 141.82 squzrre yards, equivalent to

118.44 squa-re 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 \ 2 NNRJ CCCA 6 2OO2 consideration of Rs.2,OO,OOO/- and accordingly. I e received an arnount of Rs.2O,OOO/ as advance sale consider? 1 on. It is not in dispute that at the time of execution of agreem: 'rt of sale, the suit schedule premises is under the occupation r I the tenants and as per Clause 6 of the said Agreement of sale, the

defendant had given an undertaking to evict ter i nts from the subject premises within a period of 4 months anc to execute a registered sale deed in favour of the plaintiff. The plaintiff approached the defendalt in the lst week of Jecember to comply with Clause No.6 of the Agreement rf Sale and demanded for execution of registered sale deed ir -ris favour by receiving the balance sa,le consideration. But, t le defendant requested the plaintiff to extend the time for a fu ' her period of four months for evicting the tenants from the s uit schedule property.

4. It is stated that meanwhile the plr ntiff got an opportunity to go abroad for service and he inforr ed the same to the defendant and requested him to execute a lr gistered sa-le deed in the month of January, 1990. But the del ndant failed to evict his tenants from the subject premises lnd did not choose to execute registered sale deed in his favr r r r.r'ithin the / / ) 3 NNR.J CCCA 6 2OO2 said period. The plaintiff left abroad in the lst week of Februar5r, 199O by requesting the defendant to e'rict the tena_nts 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 seII the subject premises to third parties, the plaintiffs GPA hled 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 defendalt and to restrain the defendant from alienating the suit schedule premises in favour of the third parties-

6. [t is a]so 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 4 NNR.J cc( A 6 2002 .:l I

04.1 1 .1991 through his counsel. Having rec :ived the said notice, the defendant failed to issue any reply. lhe contention of the plaintiff is that he is having joint fam I r and residing along with his four brothers in the adjacent house of the subject premises, therefore, he intends to purclr lse the subject premises house bearin g No.22-7'82, which is z ttached to the suit schedule property. Hence, the suit.

7. The defendant hled written statemrr rt denying the averments made in the plaint and contended t -rat he entered into an agreement of sale with the plaintiff thcr gh the time is essence of the contract but the plaintiff failed to perform his part of contract within the stipulated period, ,r l spite of legal notice, dated 14.02. 1990. Though the defenc i nt is ready to execute a registered sale deed within the stipula ted period, the plaintiff never approached the defendant in the month of December, 1989 as alleged by him in the plair t Further, the defendant is not aware of plaintiff going abroar and he never requested for execution of registered sale deetl It is further averred that the plaintiff had no money and he 'r ts not ready to perform his part of contract within the stipultL ed time. It is stated that as the plaintiff failed to get the sa1': deed executed 5 NNR,J c( cn 6 2002 within the stipulated period in spite of the notice, dated

14.02.1990, the defendant was entitled to forfeit the earnest money and sell the house to any one he chooses.

8. The defendant is not aware of return of plaintiff from abroad and he never violated the terms and conditions the agreement. In fact, the plaintiff having taited to perform his part of contract within the stipulated period and got issued legal notice to cover up his defaults. Therefore, the defendant issued legal notice, dated 14.02.1990 to the plaintiff calling upon him to pay the balance consideration sa_le consideration alrd obtain a sale deed from him. The plaintiff received the said lega1 notice and kept quite. The time is the essence of the contract. The said contract stood cancelled. Further, to meet the necessities, the defendant sold away the suit house to one Anasuya Bai on 10.07.1990 and inducted her into possession of the properfy. The plaintiff is the one who committed the breach of contract and that the present suit is barred under Order II Rule II of C.P.C. The plaintiff has no cause of action for filing the suit and hence, prayed to dismiss the suit.

9. Basing on the above pleadings, the Trial Court frarned the following issues for trial: 6 NN&J c( ('A 6 2002 ; 'l.Whether the plaintilf is eatitled for relie of sPeciflc performance of coEtract in respect of suit schedr e ptoPerty as prayed for?

2.To what .ellel?"

10. As parties to the suit filed additiort 1 pleadings and basing on the said pleadings, the following adc i .ional issue was also framed by the trial Court for trial which re? ls as follows: sWhether tlre suit is barred uader Order II Ru te II CFC by virtue of Judgment and decree ia O.S.No.336i of 199O on the lile of VII Junior Ciwil Judge, City livil Court, Hyderabad?" 11. During pendency of the suit 1s' g laintiff and 1"1 defendant died. Therefore, plaintiff No.2 to !' were added as legal representatives of plaintiff No.1 and deferr lalt Nos.2 to 4 were added as legal representatives of defendant No.1

12. During the course of enquiry, on t,r half of plaintiff P.Ws.1 and 2 were examined. and Exs.A. 1 to i\ 4 'rt/ere marked and on behalf of defendant D.W. 1 was examine:l and Exs.B.1 to B.5 were marked.

13. t{avihg ttre srrbmissions made by lear ned counsel on either side and takrng into consideration he facts and circumstances of the case, the trial Cour came to the conclusion that since the plaintiff failed to pa]' t re balance sale consideration as per Ex.A. l-Agreement Sa-le ", ithin the time I 7 NN&J CCCA 6 2OO2 mentioned thereil to register a regular sale deed in his favour even after acknowledging Ex.B1-Legal notice, the plaintiff lost his right to seek Specific Performalce of Agreement of Sale and filed the present suit at fag end of Iimitation period, therefore, the plaintiff is not entifled for discretionar5r relief of Specihc Performance.

14. The trial Court further held that even if the tenants fails to evict from the subject premises, the plaintiff is at liberty to take symbolic possession of the subject property from the defendant and that the suit is barred by the provisions of Order II Rule II of CPC for the reason that law requires that the plaintiff has to include the whole claim arising out of the same cause of action and accordingly dismissed the suit vide the impugned judgment and decree. Being aggrieved by the said judgment arrd decree, the plaintiff filed the present appeal.

15. The averments of the plaintiff is that the GPA holder of the plaintiff hled a suit in O.S.No.3363 of 1990 on the file of learned VII Assistant Judge, City Civil Court, Hyderabad, for permanent injunction against the defendant alleging that by committing breach the defendant are trying to sell away the suit schedule property in favour of third parties. Subsequently, the 8 NNR.J cccn 6 1002 said suit was dismissed. The right to r; te for specific performance arose to the plaintiff, the mo c .ent when the defendant is trying to sell the property in favour of third parties in violation of the terms and conditions of the A5 reement of Sale dated O4.08.1989 (Ex.A. 1).

16. Heard Smt. Manjari.S.Ganu, lear::d counsel for the appellants and Sri Sanjay, learned counsel I epresenting Sri T.Muralidhar Rao, learned counsel for the resp< nderlts. L7 . l,earned counsel lor the apl ellants-plarntiff contend s that the trial Court has not appre :iated whether Ex.B.l-legal notice, dated 14.02.1990, said to }L; .ve been issued by the defendant to the plaintiff was served orr the plaintiff or not; that the appellant was always ready and r,', iling to pay the balance sale consideration, but the defendant cil not choose to come forward to get the sale deed registererl by taking the balance sale consideration thereby committed t reach of terms and condition of Ex.A. 1; that at the time of exe c rtion of Ex.A. 1 as the suit schedule property is under the ot r r-rpation of the tenailts and the defendant undertook to evicl them within a period of four (41 months and received z n amount of Rs.20,000/- as advance sa-[e consideration. .I is contended 9 NNR.J c( ('A 6 2002 that the defendalt failed to keep up his promise. l,earned counsel for the appellants further contends that the tenants are still continuing in the subject premises. She also further argued that the plaintiff has approached the defendant number of times to receive balance sale consideration and register a regular sale deed, but there is no response from the defendant and more over when the defendant was trying to sell away the subject property in favour of third parties, the GPA of the plaintiff filed a suit for permanent injunction. She further contended that the trial Court failed to appreciate that the when the defendant is trying to sell au,ay the subject property to third parties taking advantage of plaintiff being out of Country, hence, the plaintiff had no other option except to file a suit in O.S.No.3363 of 1990 and obtained injunction. She further submits that the tria,l Court has not properly appreciated that time is essence of the contract as no period was prescribed. She further submits that the plaintiff is having property adjacent to the subject property, therefore, he is interested to purchase the same and approached defendant number of times to take balance sa,le consideration and register a regular sale deed in their favour. But they did not do so and l0 NNR.J ( CC;\ 6 2002 they themselves committed breach. She also fr rther contended .l that the plaintiff did not receive any legal noti, e issued by the defendalt. The defendant has not complied u i .h the condition precedent for the purpose of getting the sale de :d registered by evicting the tenants. In fact, it is the plaintiff ,,ho issued legal notice, dated 04.1 1. 1991 about his readiness ar d u'illingness to pay balance sa-le consideration and the same v'Ls served by the defendant. Hence, she prays to set asidr the impugned Judgment and decree.

18. On the other hand, learned r r unsel for the respondents-defendant contended that the tr ial Court after considering the entire evidence on record. he trial Court passed the impugned Judgment in right persirr ctive and there are l1o grounds to interfere with the same and rence, he prays to dismiss the appeal.

19. Having heard the submissions mi de by learned coun sel for the parties the following issues, that arise for consideration in this appeal are: (1) Whether the appellarlts are entitled for Spr:r ific Performaace of Agreeneat of Sale? l2l Whether the suit is barred under Order lt Rule II of the c.P.c? ]\NR.J c((A 6 2002 (3) Wbether the trial Court has committed any error ia decreeiag the sult?

20. ISSUE NO. 1: With regard to issue No. 1 , considering the entire arguments made by both the counsel and a-lso the materia-l placed on record, it is not in dispute that there is an agreement of sale entered between the plaintiff and the defendant, wherein the plaintiff agreed to purchase the suit schedule property for a total sale consideration of Rs.2,OO,OO0/- and accordingly the plaintiff paid an amount of Rs.2O,OOO/- as advance. It was also agreed by the parties that the said Agreement of sale shall be concluded within a period of 4 months as per the recitals in the agreement. It is also evident that the balance sa,le consideration of Rs. 1,80,000 shall be paid at the time of execution of the register sa-le deed. It is also agreed between the parties that in the event of extension of time, the vendor shall grant extension for further period by mutual consent of both the parties 2L. It is also further agreed that there ls ar understanding between the parties that as the suit schedule property is in_occupation of tenants and as per Clause 6 of the 12 NNR.J ca( A 6 2002 said Agreement of Sale, it was agreed between t ee parties that the vendor i.e., defendant shall get the tenant s evicted within stipulated period- It is also further agreed upr n mutually by the parties that in the event, if the tenants farl ; to vacate the suit schedule premises within the time stipulr t ed' the vendor shall deliver the schedule property by way of s'r nbolic position at the time of execution of the register sale dr:r d' There is no denial about the execution of the sale and the re, eipt of the sale consideration. The only issue between the rarties is that according to the plaintiff he is ready and willin I to perform his part of contract, but the defendant is not reac y to execute a registered sale deed by receiving the balance sal: consideration and did not comply with clause 6 of the Agr :ement of sale whereinthedefendantundertooktoevictthett:Lantsorvacate the tenants within 4 months. Though plaintiff i pproached the defendant in the last week of December 1989 o comply with the clause 6 of Agreement of sale and demand: I for execution of register sale deed in favour of the plaintiff : r receiving the balance sale consideration, it is the contentior. of the plaintiff that the defendant sought further time of 4 mo I -hs for evicting the tenants. ,/ /? , l3 NNR.J (c(A 6 2001

22. In the month of Januar5r 1990, the plaintiff had to travel to United States of America on work and the salne was informed to the defendant. It is also evident from the record that while the plaintiff was going abroad, the plaintiff executed a GPA in favour of one Sri SSA Nazar, who contended that as defendant without executing a regular sale deed in favour of the plaintiff is trying to sell the suit schedule property in favour of the third parties, the GPA holder of the plaintiff got liled a suit for permanent perpetual injunction in O.S.No.3363 of 1990 on the file of the VII Assistant Judge, Ciry Ciyil Court, Hyderabad. The said suit was dismissed for default.

23. The main grievance of the plaintiff is that though the plaintiff was ready and willing to perform his part of contract, but the defendant did not get ready with the performance of his part of contract. Per contra, the case of the defendant is that as the plaintiff did not keep up his promise to get ready with the balance sale consideration and seek the sale deed executed in his favour. It is the case of the plaintiff that he approached the defendant and requested him to execute a registered sale deed in respect of the suit schedule property by taking balance t4 NNRJ CCCA 6 2OO2 saie consideration. But, the defendant did rot register the same.

24. [t is not in dispute that the plaintilf filed a suit vide O.S.No.3363 of l99O on the file of learned VII I ssistant Judge, City Civil Court, Hyderabad, through GPA h rlder when the defendant is trying to sell the suit schedule p - ,perty in favour of third parties. It is a-lso not in dispute that rl e said suit was dism issed.

25. Learned counsel for the defendant i rgued that the plaintiff knowing fully well that time is the esst nce of contract as per Clause mentioned in the Agreement of I ale. it shall be executed within a period of 4 months from t re date of the Agreement. He also pointed out that as per ( lause 6 of the Agreement of SaIe, the defendant agreed to eI ct the tenants within the stipulated period and he also pointec lut that as per Clause 9 it u,as mutually agreed between the par lies ttrat in the event, the tenant failed to vacate the sairl property the defendant shqall deliver symbolic possession ,r the schedule property at the time of execution of sale deed.

26. lt is also pointed out that in Ex.B.l_ r gal notice it is averred that as the time is the essence of the <:r ntract and as 15 NNR.J ( cc^ 6 2001 there being no extension and as four months completed, the agreement stands cancelled and the advance amount also stalds forfeited. It is also stated that the tenants are ready to evict the suit schedule premises as per clause mentioned in the agreement of sa1e. The defendant called upon the plaintiff to pay the balance sale consideration and get the sale deed registered. The said notice was sent as per EX'B'2' It is further stated that in spite of notice, the plaintiff did not turn up, as such the defendant sold the property to one Anasuya' In support of his contentions, he also placed reliance on the judgment in K.Anuradha v. Mounitrat; t(ulkarni Patterns Rrt' Ltd and others v. Vasant Baburao Ashtekar and others2; N.V.Srinivasa Murthy aad others v. Mariyamma (Deadf by proposed L'Rs and Ors.3 Priyanka Kumari v' Shailendra Kumara; M/s. Virgo Industries (EnS.l P.Ltd. v. M/s' Venturetech Solutions P.Ltds and Shenbagam and Ors' V' K.K. Rathinavele' 'z 1 c.R.P.No.684 of 2024 AIR 1992 SuPreme Court 1097 3 AIR 2005 Supreme court 2897 o LAws (sc)-2023-10- 108 s 2012 (s) ALr (sc) s7 (D.B) 6 AIR 2022 Supreme Court 1275 \-. ! .l \1rl\| \ t6 \NR.] ('LCA 6 2002

27. Placing reliance on the aforesaid j rdgments, it is contended that plaintiff has to prove before this lourt that he is really willing to perform his obligation and prr ve that he had required money to get register the sale deed. Ir spite of receipt of notice, the plaintiff did not choose to give r: rly to the show cause, therefore, it amounts to admission of he contents of legal notice.

24. He also further argued that the s - it is barred by Order II Rule II of C.P.C. as on the date of iling of suit in O.S.No.3363 of 1990, the plaintiff acquired a r t ht to lile a suit as the cause of action for filing the suit for eeking specihc performance arose. In spite of the same, he di t not choose to hle the suit for such a relief

29. On behalf of the plaintiff, P.W. I was examined who admitted in his chief examination that he did nc - give any reply to the legal notice issued by the defendant. He ; Iso admitted in his cross-examination that during pendency c I the suit ald later also the defendant did not seli the subjecr property under any registered documents. 1i the cross examinz tion though he stated that aJter four months from the date , ,f execution of Ex.A.l when he approached the defendant a nd to execute . "-=1' F l7 NNR-J C('( A 6 2001 -f registered sale deed after receiving balance sale consideration, he did not hle any document to show that he had the balance of sale consideration with him when he demanded the defendalt. P.W.2, who is brother of the plaintiff also submits that at the time of execution of Ex.A. 1, the defendalt have agreed to evict the tenants and deliver vacant possession to the plaintiff within four months. He further stated that as on today, the tenants are residing in the subject premises.

30. D.W. 1 in his evidence deposed that the suit was sold to one Smt.Anasuya Bai on 10.07.1990. He stated that since the ptaintiff failed to perform his part of contract, the agreement was cancelled though legal notice, dated 14.02.1999. It is stated that plaintiff never approached them demanding for execution of sale deed. The plaintiff frled suit for injunction against the defendant and later it was dismissed

31. The defendant has issued legal notice, dated

14.02.1999 to the plaintiff wherein they stated that they expressed their readiness and willingness and calling upon the plaintiff to get ready with execution of registered sa-le deed by paying balalce sale consideration. It is also mentioned in the said notice that the tenants are ready to vacate and the vacart t8 NNR,J CCCA 6 2OO2 I possession of the same would be handed over tt -he plaintiff on the same date. It shows that the said letter also eceived by the plaintiff. It appears that no reply has been issued by the plaintiff. Subsequently on 03.08.1990 the GP,\ holder of the plaintiff filed a suit for perpetual injunction z gainst the l"t defendant from alienating the suit schedule prcl erty by way of transfer of suit schedule property in favour of tr rd parties. In the notice issued by the defendant against r 1 e plaintiff, in which it is specifically stated that according to ( lause 2 of the Agreement of sale, the plaintiff is bound by Ex.A -Agreement of sale, but there is no explanation for execution oi registered sale deed and treating the time is essence of contrac - and since four months passed away, it is contended that the alt eement of sale stands cancelled and the earnest amount give I was forfeited. Since the defendant did not evict the tenants, as such they did not get ready to execute the sale deed.

32. ISSUE No.2: Further, the point u,hich is raised by the cr fendant in the suit is that the suit is barred under Order II ancl ?ule II of CPC. It is seen that the plaintiff came to know bv wa; of legal notice issued by the defendant under Ex.B. 1, '*.here i r the plaintiff / f l9 NNR.J c('cA 6 2002 were called upon to pay the balance sale consideration and get the sale deed registered. In spite of the same, the plaintiff did not choose to get ready with the sa-le deed executed and filed a suit through GPA holder being O.S.No.3363 of 1990, wherein it was specihcally pleaded that the cause of action for the plaintiff is that the defendant subsequent transferred the suit schedule property to third parties on higher value, though the defendant agreed to sell the suit schedule property to the plajntiff which clearly shows that in a suit for specihc performance, time for frling the suit or seeking the relief of specific performance would arise from the date of refusal by the vendor by the pa-rties to the Agreement.

33. Learned counsel for defendant vehemently contended that the suit is barred under Order II and Rule II of CPC wherein in O.SNo.3363 of 1990, the cause of action for seeking specihc performance though subsists and in spite of the same, they did not choose to seek the relief of specific performance and relying upon the judgments of the Hon'ble Supreme Court in N.V.Srinivasa Murthy and Ors v 20 NNR,J cccA 6 2002 Mriyamma (Dead) by proposed L.Rs. and other;7,, wherein at paragraph Nos.13 and 15 it was held as under: In paragraph I I of the plarnt, the plaintitf have statc(l I ilt they had earLer instituted original suit No 557 of t99O scckir I pcrrnanent injunction against de[endant. Civil suit No..5.57 of Iggo was pending when thc p.csent s rt'*'as iiled' In the present suit, the retief indircctly claimed is of dec a ing thc sale deed of 5.5.1953 to be not really a sale dccd but a loa r transaction- Relief o[ rcconveyance of property under allcged oral r reement on rcturn of loan has been dcliberately omitted from th( r' I I clausc. In ourvleq, the prescnt plaint rs liablc to rciectlon, lf n()' il lhe ground that it does not disclose 'cause of action', on the grouF(j I )ilt flom the averments in rhe plaint, the suit is apparcntl) barrc<l '; law wrthin of Order Vll Rulc I I ()l ( rdc of Civil the meaning of clause (d) Procedure 3,4. Further, he a-lso relied on the juclgrr ent of Hon'ble Supreme Court in M/s.Virgo Industries (Eng.) P-Ltd. v. M/s. Venturetch Solultions P.Ltd.8, wherein the H( n'ble Supreme Court at paragraph Nos.14 and 16 it was held tlr rs: 1,4 The averments made by thc plaintitt in C.S. Nos t-l I 2o0s,particularly the pleadings cxtracted abovc, lcave no roon on the dates when C.S. Nos. 831 and 833 of 2005 were insltl 2a.A.2OO5 and 09.09.2005, the plarntiff itsclf had claimc(i i events have occurred which entitled it lo contend that Lhe d, 1 intention to honour the agreements dated' 27.7.2005. ln situation it was open for the plaintifl to incorporate thc rl I performance along with the relief of permanenL injunction I subject matter of above two suits. The foundation for the ,clr"l injunction claimed in the tu/o suits furnishcd a complete cartsr', plaintiff in CS. Nos. 831 and 833 to also suc for rhc t performance. Yet, the sald re[ef was omittcd and no leavc rn I obtained or granted by lhe Court. anrl 833 of or doubt thaL r ted, namely, rr fircts ald dant had no he aforesaid rl ol specilic a t formed the of pormanent I actron to t}lc ir:f of specific ris rcgard was 16 The Ieamed Single Judge of the High Court had consiri r cl, zrnd very thc case of rightly, to be bound to follow an carlicr Dlvisrcn Bench order t ' nIR zoos sc z8gz 8 zorz 1sy ALr s7 (D.B) f 2t NNR.J CCCA 6 2OO2 R.Vrmalchand and M-Ratanchand v. Ramalingam, T.srinivasalu & T.Venkatesaperumal (supra) holding that the provisions of Order ll Rute 2 the CPC would be applicable only when the lirst suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provrsions of Order II, Rule 2(3) w.i[ not be attracted. Judicial discipline required rhe learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order lI Rule 2 of the CPC as already discussed by us, namely, that of the CPC seeks to avoid multiplicity of htigations on same Order cause of action. If that is Lhe rrue object of the law, on which we do not entertain any doubt, thc same would not stand fully subsewed by holding that the provisions of Order Il Rule 2 of the CPC will appty only it the frrst suit is disposed of and not rn a situation where the second suit has been hled during the pendency of the firsr suit. Rather, Order II. Rule 2 of the CpC wilt apply to both the aloresaid situations. Though direct judicial pronouncements on tie issue are somewhat scarce. we hnd that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram[7] and by the Bombay High Court in Krishnaji v. Raghunathl8].

35. In respect of readiness and willingness he also relied on the judgment of the Honbie Supreme Court in Shenbagam and Ors v. K.K.Rathinavele, wherein at pa-ragraph No.3O it was held as follows "Further, in 1991 the respondent rnsritutcd a suit for rnandatory injunction for restraining the appellants lrom alienating thc suit property. He did not however, instilute a suit for specihc performance of the contract until 17 June 1993. The respondent has taken the plea that he was waiting for the appellants to discharge the mortgage to filc a suii for specific performance_ we are unable to accept this submission. By extending the respondent's argument, if the appellants had failed to discharge the mortgagc, the respondent would not have filed a suit for specific performance of the contract at all. We also note that the respondent has withdrawn the balance consideration deposited by him before the rrial court in 2OOl. The inconsistency in the respondent's conduct, rhe lack of communication with the appellants urging lhem to dlscharge the mortgage and showing his willingness to pay tie balance consideration, and the delay of about three years from the date fixed for performance oI thc contract rn filing a suit, are all indlcative of the respondent's Iack of will to perform the contract." s Na zozz { tzts )^, N NR.J CCCA 6 2OO2

36. In the present case, the contention 'r the defendant was that even as per the plaintiff own pleadings n the said suit it shows that as on the date of frling of the sui' in O'SNo'3363 of 1990 the cause of action for filing the s'r it for Specific Performance was very much available to the 1> arntiff and the contention of the defendant is that the suit I barred under Order II and RuIe II of CPC in filing the present s -rit holds good' g7 . This Court is of the opinion that he trial Court carne to the conclusion that right to s - 3 for specihc performance arose when the defendant tried ' ' sell away the property to others in violation of terms ald con: itions of Ex'A' 1 and as rightly held that the issue in favour o the defendant against plaintiff and consequently the Court has rightly rejected the relief of specific performance of agreem : rt of sale and decreed the .suit to the extent of repayment of r:r rnest money of Rs.20,O0O/- to the plaintiff, which in the opin t n of this Court that no error has been committed by the learnt d trial Court in coming to such conclusion and there are ro grounds to interfere with the said findings.

38. After one year eight months a noti<:r was issued by the plaintiff seeking the relief of specific perfct marce that too I !r j I 7 f 23 NNR.J CCCA 6 2OO2 though there was a condition imposed that the said sale deed has to be executed within four months from the date of the agreement a notice was issued by the defendant calling upon the plaintiff expressing their readiness arrd willingness and calling for defendant to come forward to get the sale execute. In spite of the sarne as they did not turned out, as such the contention of the plaintiff that they were ready and willing to perform their part of contract cannot be accepted and they have taken only shelter to clause (vi) that the defendant did not get the tenants evicted from the suit schedule property, as such the plaintiff did not had a ground to seek for specific performance.

39. rSSUD NO.3 For the said reasons and on over all consideration of the f,rndings and entire materia,l placed before this Court, this Court do not see any ground to interfere with judgment and decree \ passed by the trial Court. Considering the entire material evidence, documents and the judgments cited, the issues are answered accordingly in favour of the respondents-defendant and against the appellarrts-plaintiff.

40. Accordingly, the City Civil Court Appeal IS partly allowed confrrming the judgment ald decree, dated 19.O4.2OO1 t t+ CCLA 6 ]OO2 in O.S.No.33 of 1997 passed by the learned V I .dditional Chief Judge, City Civil Court, Hyderabad, to the :xtent of non- granting of specilic performance of agreement of sale. In respect of refund of advalce consideration paid by the 1 laintiff ald the same shall be paid by the respondents-deft : Ldant within a period of two (2) months from the date of receipt of this judgment. If the said amount is already deposir ed, the plaintiff are entitled to receive the same by filing m appropriate application before the Court concerned and o. L filing of such application, the advance amount deposited by 1 he vendor shall be ordered to be paid to the plaintiff with in-' rest accrued if any. There shall be no order as to costs. Miscellaneous petitions, if any, pendrr g shall stand closed. To, qI) -I NAGA LAKSHMI i IOINT REGISTRAR \ //TRUE COPY// \ rlEcttott oFFtcER

1. The V Additional Chief Judge, City Civil Court, Hyderabac 2. One CC to Smt. MANJARI S. GANU, Advocate [OPUC 3. One CC to SRI T. MURALIDHAR RAO, Advocate IOPU: i 4. Two CD Copies ( with records) kulrPSI l^ary H;I EAIT o o 1t tD= r- HIGH COURT DATED:28/08/2025 tDE( Rt:E JL'D(; MENT CCCA.No.06 of 2002 PAR'll-Y Al-I.OWING l'HL CCCA WII'HOUT' COST'S 6 1 ),D p,, q IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY,THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA CITY CIVIL COURT APPEAL NO: 06 OF 2002 Between:

1. M.A. Rasheed ( died ) per LRs 2- Samiya Begum Wo. Late M.A. Rasheed , aged 42 years, Occ: Household 3. Sobia Banu D/o. Late M.A. Rasheed , aged 23 years, Occ: Household 4. Umair Ruma D/o. Late M.A. Rasheed , aged '19 years, Occ: Student, Major 5. Ume Amara D/o. late M.A. Rasheed , aged 17 years, Occ: Student 6. Mohd. Abdullah S/o. Late M.A. Rasheed, aged 16 years, student 7. Shafia Fatima D/o. Late M.A. Rasheed , aged 12 years, student. 8. Al Maha D/o. Late M.A. Rasheed , aged 15 years, Student 9. Seema Fatima D/o. Late M.A. Rasheed, aged 6 y, years, student The Plaintiffs 5 to 9 are minors, under the guardianship of mother i.e. Appellant No.2. All are residents of H.No. 22-7 -72, Pathergattr, Hyderabad. Appellant No.4 is declared as major, discharging the guardianship of appellant No.2 as per Court Order dated 31-12-2001 vide C.M.P.No. 24949 12001 in CCCA No. 6/2002 ,.,APPELLANTS/ PIAiNtiffs Dattatreya Rao Patangi died per L.Rs. Susheela Bai Patangi Wo. late Dattatreya Rao Patangi, aged about 59 years, Occ: Household Suresh Kumar Patangi S/o. Late Dattatreya Rao patangi aged about 38 years, Occ: Business AND

2. J.

4. Venkataramana Patangi S/o. Late Dattatreya Rao Patangi , aged 33 years, All are residents of H.No- 3-3-94, Qutbiguda, Hyderabad. ...RESPON DENTS/ Defendants Appeal Under Section 96 of CPC against the Judgnrr nt and Decree in O.S.No. 33 of 1997 dated 19-04-2001 on the file of the Ccr rt of the Additional Chief Judge for SPE & ACB Cases cum V Additional Chief Judg :. City Civil Court at Hyderabad. This appeal coming on for hearing and upon perusii rg the grounds of appeal, the Order and Decree of the Court below and the ma :erial papers in the case and upon hearing the arguments of Smt. Manjari S. ( ianu, Advocate for the Appellants and Sri Sanjay representing for Sri f Muralidhar Rao, Advocate for Respondent. This Court doth order and decree as follows: t. That the City Civil Court Appeal be and hereby is part 1 allowed confirming the judgment and decree, dated 19-04-2001 in O.S.l{o ,3 of 1997 passed by the learned V Additional Chief Judge, City Civil Cour , Hydcrabad, to the extent of non-granting of specific performance of agreern :nt of sale.

2. That in respect of refund of advance consideration pa ( by the plaintiff and the same shall be paid by the respondents defendant r,, :hin a period of two ( 2) months from the date of receipt ofthis judgment.

3. That if thc said amount is already deposited, the plai tiffs are cntitled to receive the same by filing an appropriate applicatio r before the Court concerned and on filing ofsuch application, the advancr, rmount deposited by the vcodor shall be ordered to be paid to the plaintiffs Uith interest accrued if any. ,1. That there shall be no order as to costs in this appeal. / INAGA LAKSHMI . OINT REGISTRAR 1sD , qil I TtDN a+ [ tcEl- To l. The V Additional ChiefJudge, City Civil Court, Hyderabat. 2. Tuo C.D.Copies t<ttttvst 4fi, HIGH COURT DATED:28/08/2025 DEC R Ir ll CCCA.No.06 of 2002 PAR] l.Y Al-I.OWING Tl llr CCCA WITHOUT COSTS 01 \ q u,' I