THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY 
Second Appeal No.587 OF 2011
20-06-2011
Komatireddy Buchi Reddy
Pannala Narsimha Reddy
COUNSEL FOR PETITIONER: Sri G.Machusudhan Reddy
COUNSEL FOR RESPONDENT: N.Ramachandra Rao
:JUDGMENT:
The appellant filed O.S.No.50 of 2002 in the Court of the Senior Civil
Judge, Bhongir against the respondent for the relief of specific performance of
an agreement of sale, dated 25.01.2001, in respect of Acs.6.12 guntas of land in
D.Nagaram Village, Choutuppal Mandal. He pleaded that the respondent agreed to
sell the land at the rate of Rs.36,000/- per acre and on the date of the
agreement, a sum of Rs.1,00,000/- was paid as part of consideration. According
to the appellant, though the sale deed was to be executed on or before
21.04.2011, after payment of balance of consideration, the respondent was under
obligation to get the land measured and to obtain non-encumbrance certificate.
He pleaded that despite his request, the respondent did not come forward to get
the land measured and that left with no alternative, he filed the suit.
The respondent filed a written statement opposing the suit. He pleaded that
time was essence of the contract and that the appellant did not pay the balance
of the consideration, within the stipulated time. He denied the averment that
the land was not measured or that the other formalities were not complied with.
The trial Court dismissed the suit through judgment, dated 14.02.2008.
of 2008 in the Court of the Principal District Judge, Nalgonda. The appeal was
dismissed on 14.03.2011. Hence, this second appeal.
Sri G.Madhusudhan Reddy, learned counsel for the appellant, submits that
the trial Court and the lower appellate Court have taken hypertechnical view of
the matter and once the agreement marked as Ex.A1 was proved, the relief of
specific performance ought to have been granted. He submits that the appellant
made repeated oral requests to the respondent to get the land measured and even
by the date of filing of the suit, the measurement has not been taken place.
Sri N.Ramachandra Rao, learned counsel for the respondent, on the other
hand, submits that time was the essence of contract and the appellant did not
pay the consideration before the stipulated date. He submits that the theory of
the appellant making a request to the respondent to get the land measured and
that there was non-compliance with the same; was invented for the purpose of the
suit. He further submits that the trial Court and the lower appellate Court have
examined the matter in detail and have arrived at just and proper conclusions.
He contends that the concurrent findings of fact do not warrant interference.
In the suit filed for specific performance of an agreement of sale, filed
by the appellant, the respondent did not deny the execution of the agreement,
but has pleaded that the former was not ready and willing to perform his part of
contract nor did he comply with the obligation within the stipulated time.
The trial Court framed the following issues and additional issue for its
consideration:
Issues:
1. Whether the plaintiff was ready and willing to pay the balance of
consideration on or before 20.04.2001 to obtain registered sale deed?
2. Whether the agreement of sale dated 25.01.2001 is inadmissible in evidence?
3. Whether time is the essence of contract in this case?
4. Whether the plaintiff is entitled for relief of specific performance of
contract of sale?
5. Whether the defendant is owner of suit land and he is entitled for recovery
of possession of suit land?
6. Whether the defendant is entitled for mesne profits at the rate of
Rs.12,000/- per annum from the date of counter claim till the date of delivery
of possession of suit land?
Additional Issue:
1. Whether the plaintiff is entitled for the alternative relief of damages on
the basis of prevailing market value, if so, at what rate?
On behalf of the appellant, P.Ws.1 to 3 were examined and Exs.A1 to A10
were filed. The respondent alone deposed as D.W.1 and filed Exs.B1 to B3. The
suit was dismissed. The lower appellate Court framed only one point for its
consideration namely;
1. whether the appellant is entitled for setting aside judgment and decree
passed by Senior Civil Judge, Bhongir, in O.S.No.50 of 2002, dated 14.02.2008 as
prayed for?
The appeal was dismissed. At the outset, it needs to be observed that the point
framed by the lower appellate Court was not at all proper. When several issues
were framed and findings were recorded by the trial Court, the lower appellate
Court ought to have bestowed its attention to all the aspects independently,
since an appeal happens to be the continuation of a suit. Some times, it would
be possible to cover all the issues in a single point that may be framed by the
lower appellate Court. Where, however, different issues covered by separate
legal regimes are framed, it is always advisable to deal with them separately.
The point framed by the lower appellate Court in the instant case would
not at all bring about a comprehensive adjudication nor does it accord with Rule
31 of Order XLI C.P.C. The reason is that even if the decree passed by the
trial Court in O.S.No.50 of 2002 is set aside, the controversy does not get
resolved. The only antithesis for dismissal of a suit would be passing of a
decree as prayed for. The importance of point to be framed in appeal is the
same as that of an issue in the suit and discussion naturally has to proceed
pointedly. The lower appellate Court ought to have bestowed its attention while
framing the point for its consideration.
Coming to the merits of the matter, the respondent did not dispute the
execution of agreement of sale in favour of the appellant. In clear and
unequivocal terms, the parties made time as the essence of contract. The
balance of consideration was required to be paid on or before 21.04.2011. Even
where time is the essence of contract, the plaintiff can point out the hurdles,
if any, for him to pay the balance of consideration. That, however, must be done
before the expiry of the stipulated date.
In case the appellant was of the view that the land was to be measured before
the stipulated date, he ought to have issued a written notice to the respondent,
duly expressing his readiness and willingness to pay the balance of
consideration or by offering the amount. No such steps were taken by him. It
was only on 04.04.2009 i.e. after expiry of one year, that the appellant got
issued Ex.A3 calling upon the respondent to receive the consideration and
execute the sale deed. By that time, the clause that made time, the essence of
contract operated; and in a way, the agreement stood abrogated.
The trial Court has also analyzed the evidence pertaining to the financial
solvency of the appellant. It was observed that the appellant did not possess
adequate means to pay the balance of consideration as on the date of filing of
the suit much less the date stipulated for payment of balance of consideration.
This Court does not find any substantial question of law nor is it inclined to
interfere with the concurrent findings of fact. The second appeal is accordingly
dismissed. There shall be no order as to costs.
