THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 647 of 1996 JUDGMENT: The plaintiff in O.S.No.105 of 1986 on the file of the Subordinate Judge, Kovvur is the appellant herein. The suit was one filed for specific performance of the contract of sale or in the alternative for refund of the advance amount with interest and also for damages. According to the case of the plaintiff, he was a tenant of the 1st defendant, who is owner of the schedule property and he agreed to purchase the property for a sum of Rs.55,000/- and on 12.04.1983 a sum of Rs.4,500/- was paid and a receipt was passed. Out of the balance consideration, Rs.20,000/- was to be paid by 30.05.1983 and the remaining balance was agreed to be paid by 30.11.1983 and in spite of repeated demands, the 1st defendant has not executed the registered sale deed after receiving the sale consideration in spite of readiness and willingness of the appellant. It appears that the 2nd defendant claiming to be a tenant of the 1st defendant has filed A.T.C.No.14 of 1983 on the file of the Special Officer, Kovvur alleging that the property was leased out to him and, therefore, the 2nd defendant was also added as a party contending that the 2nd defendant was not a tenant and he was a person set up by the 1st defendant to defeat the claim of the appellant. Therefore, the appellant has sought for specific performance of the contract of sale. The 1st defendant filed a written statement admitting the execution of the contract of sale and also receipt of a sum of Rs.4,500/- and also the conditions for payment of the balance of consideration. According to him, the 2nd defendant filed A.T.C.No.14 of 1983 and the 1st defendant was contesting the same and taking all efforts to see that the A.T.C. is disposed of and the mere pendency of A.T.C. is no bar for performance of the part of the contract by the plaintiff and the plaintiff has committed default in not paying the balance of the consideration in the stipulated time and, therefore, the plaintiff is not entitled for the relief of the specific performance. The 2nd defendant filed a written statement contending that he was a tenant of the schedule property and he has been in continuous possession and enjoyment of the schedule property since 1976 and cultivating the same and thereafter he filed A.T.C.No.14 of 1983, which is still pending. Therefore, according to him, the plaintiff is not entitled for the specific performance of the contract of sale. On the above pleadings, the following issues were framed for trial: 1. Whether the agreement of sale dated 12.4.1983 is true? 2. Whether the plaintiff is entitled to specific performance of the agreement of sale dated 12.4.1983? 3. Whether the second defendant is a cultivating tenant of the suit schedule property? 4. Whether the plaintiff is entitled to the alternative relief for refund of the amount with interest as claimed? 5. To what relief? On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-4 and on behalf of the defendants, D.W.1 was examined and marked Ex.B-1. After considering the evidence on record, the lower Court has found that the plaintiff has committed breach and the time was also essence of the part of the contract and consequently dismissed the suit. The lower Court also refused to refund the money on the ground that as the plaintiff has committed the default, he is not entitled for refund of the money and aggrieved by the said judgment and decree dated 06.03.1995, the present appeal is filed. The points that arise for consideration are: 1) Whether the appellant is entitled to the specific performance of the contract of sale or in the alternative for the refund of the money as claimed? 2) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINTS: So far as the facts in the case are concerned, there is no dispute about the fact that the 1st defendant is the owner of the property and mostly Ex.A-1 was executed and a sum of Rs.4,500/- was paid as advance by the plaintiff to the 1st defendant. It is also not in dispute that the 2nd defendant claiming tenancy has filed A.T.C.No.14 of 1983 to which the plaintiff is also a party. It is the case that the 2nd defendant claimed that he was cultivating the property since 1976 and he has got a right of pre-emption. There is also no dispute about the fact that the lower Court has dismissed the A.T.C. and against that A.T.A.No.73 of 1987 was filed. As can be seen from Ex.B-1, the appeal is allowed and the 2nd defendant is found to be cultivating the land under the Tenancy Act. As against that the plaintiff has preferred the Writ Petition No.1532 of 1991, which was also dismissed. Therefore, as the matter stands, the 2nd defendant has got a right of tenancy and the specific performance of the contract of sale involves complicated issues about the conveyance in the rights of the property and it will lead to further litigation between the parties rather than conveying the property, keenly with clear rights to the plaintiff. As rightly found by the lower Court, the appellant should have been atleast deposited the amount during the pendency of the suit, even if the A.T.C. is pending. But, as the matter stands, there is also an apprehension in the mind of the plaintiff that a valid title is difficult to be conveyed in view of the litigation that has been taken up by the 2nd defendant and consequently the relief of specific performance becomes difficult to be granted. Therefore, the relief of specific performance is being discretionary and there being an issue about the rights of permanent tenancy raised by the 2nd defendant, I feel the interest of justice would meet, if the lower Court has granted the refund of consideration even if the plea of specific performance is negatived since it is not because of the fault of the plaintiff that the event has been delayed but because of the conduct of the 2nd defendant and also the pendency of the litigation. Therefore, in view of the above circumstances, the appeal is allowed and the suit of the plaintiff is decreed for refund of a sum of Rs.4,500/- (Rupees four thousand five hundred only) with interest at 9% per annum from the date of the suit till the date of realization. The plaintiff is also entitled for the costs throughout. ________________________ N.R.L.NAGESWARA RAO, J DATE: 21-09-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 647 of 1996 DATE: 21-09-2011 MR