THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1288 of 1991 JUDGMENT: The plaintiff in O.S.No.36 of 1985 on the file of the Subordinate Judge, Siddipet, is the appellant herein. The suit was one filed for specific performance of the contract. According to the case of the plaintiff, the defendant represented to be the absolute owner of the schedule property, which is an extent of Ac.15- 00 guntas and agreed to sell the same for a consideration of Rs.50,000/- and on 07.03.1984 stamp papers were purchased but later the defendant claimed the that he will sell the same for Rs.75,000/- and on that day i.e. on 07.03.1984 after payment of Rs.5,000/- towards advance of an agreement was executed. In spite of repeated demands, the defendant did not execute the sale deed or give away the balance of money and when a legal notice was issued on 15.05.1985 the defendant gave a reply with false allegations. He claimed that he was blind and not aware of the sale transaction for which the plaintiff gave a rejoinder. As the defendant committed default, the suit was filed for specific performance. The defendant filed written statement contending that the agreement of sale pleaded by the plaintiff dated 07.03.1984 and the payment of Rs.5,000/- as an agreement advance are totally false. The document is fabricated one. The father of the plaintiff was having some acquaintance with the defendant and the defendant is a notorious court bird. The defendant is blind and taking advantage of the blindness the plaintiff wanted to grab the property. The suit is, therefore, liable to be dismissed. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled for specific performance of suit agreement as prayed for? 2. 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 defendant, D.Ws.1 to 4 were examined and no documents were marked. After considering the evidence on record, the lower Court dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree dated 21.08.1990, the present appeal is filed. The points that arise for consideration are: 1) Whether the agreement of sale executed by the plaintiff is true? 2) Whether the plaintiff is entitled for the specific performance of the contract of sale? 3) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINT NOS.1 to 3: Evidently, the burden is on the plaintiff to prove the execution of the contract and even if the proof of execution is there, to show his readiness and willingness to claim the performance of the contract. The strength of the contention of the learned counsel for the appellants is that since the execution of the agreement is denied by the defendant by proving the same the burden is discharged and there is no further need to prove the readiness and willingness. This contention of the learned counsel for the appellants cannot be accepted. The relief of specific performance is an equitable relief. Merely because an agreement was entered into between the parties, it does not entitle the relief as such, as a matter of right. Readiness and willingness at all times have to be proved. In this case, the agreement is of the year 1984. The subject matter of the suit is about Ac.15.00 guntas of land. A sum of Rs.5,000/- alone was paid at the time of the agreement. Even if the agreement is to be taken as true and proved, there is no condition in the agreement for payment of the interest on the balance and surprisingly, the balance amount of the consideration is agreed to be paid by the purchaser through installments within three years from the date thereof. Therefore, it is quite clear that the consideration was permitted to be paid in installments and no single installment was paid before the period of three years or by the date of the suit. Evidently, this gives an undue advantage to the plaintiff rather than granting equities in his favour. One has to understand as to how such a mode of payment can be fixed when vast extent of property i.e. Ac.15-00 guntas of land is purchased after paying only a nominal sum of Rs.5,000/-. This clearly goes to show that the circumstances under which the agreement has come into existence are very suspicious. Furthermore, even in his evidence as P.W.1 he claims to have got possession of Ac.4-00 guntas of land out of 15 acres, which was not mentioned in Ex.A-1. But, even then he did not pay any balance of the consideration. Though in the evidence, he has claimed that he has the money he did not deposit the same. The agreement Ex.A-1 contains the corrections with regard to the consideration being altered from Rs.50,000/- to Rs.75,000/-. As can be seen from the terms of the agreement, the plaintiff was given power to alienate also and then get the sale deed from the plaintiff. It appears to be more a General Power of Attorney transaction rather than an agreement of sale. The person, who typed the agreement was not examined. The evidence of P.W.2, who is an attestor, is not very much convincing. The evidence of P.W.3 goes to show that in 1985, the defendant gave possession of three or four acres of land to the plaintiff. This was, evidently, not endorsed on the agreement. There is no reason given by the plaintiff. The learned counsel for the appellants contends that the lower Court found fault in not taking steps for comparison of the signatures by an expert and application was filed at a belated stage and after careful comparison of the signatures, the Court came to the conclusion that they are not genuine and, therefore, it is not sustainable. According to him, this Court has passed an order in C.M.P.No.9781 of 1991 that an application was filed to reopen when the case was dismissed in the revision. It was observed that the Court is not precluded to take the assistance of the hand-writing expert if the matter warns such a coure. Basing upon this, according to the learned counsel for the petitioner, an application was filed to send the document to the expert and it was not considered. But, however, the Court itself took the responsibility. The observations of this Court in the above revision will not in any way confer a right on the plaintiff to seek the documents to be compared by the expert. In fact, I.A.No.172 of 1990 was filed and it was dismissed and the said order has become final. Therefore, from the above circumstances on record, assuming to be that the agreement of sale is true, the plaintiff has to discharge the burden of his entitlement for the specific performance by showing his readiness and willingness and the equities in his favour to exercise a discretion of granting of decree for specific performance. In this case, all the terms in the alleged agreement are detrimental to the intervention of the owner of the property and giving undue advantage to the plaintiff. In spite of the fact that three years time is given for payment of the balance of the sale consideration in installments, no single rupee was paid and on the other hand, the plaintiff came forward with the falsity of delivery of possession of the property, even for which he has not paid. Several decisions, which are cited below, have no application to the facts of the case. 1. S.Brahmanand v. K.R.Muthugopal[1] 2. Sreenivasan v. Peter Jebaraj[2] 3. Gurdial Kaur v. Plara Singh[3] 4. Sha Peerchand v. J.V.Suhramanya Jyosyulu[4] 5. S.Venkateswarlu v. N.Venkata Narasiah (died)[5] 6. Mirza Mahboob Baig v. D.Venkatnarasimha Reddy[6] 7. Vairavan v. K.S.Vidyanandam[7] 8. Nirmala Anand v. Advent Corporation Private Limited[8] 9. Metadin Agarwal (died) by LRs. v. Syed Abdul Razack[9] 10. Sughra Bee v. Kareez Fatima Qureshi[10] 11. Boddu Satyavathi v. Boddu Ramakrishna Rao[11] 12. Godavarthi Ramakrishna Rao v. B.Sitarama- chandra Raju (died) per L.Rs.[12] 13. Asia Begum (died) by LRs. and others v. Mahmuda Begum[13] The above decisions only deal with the general principles of law of specific performance, which evidently, varies from facts to facts. In this case, the very argument of the learned counsel for the appellant is that as the agreement is denied and it was proved, the further requirement of proof of readiness and willingness is not necessary, is against the principles of law, even to be traced from the above decisions. Hence, there are absolutely no merits in the appeal and the appeal deserves to be dismissed. Accordingly, the appeal suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 23-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1288 of 1991 DATE: 23-08-2011 MR [1] AIR 2006 SC 40 [2] AIR 2008 SC 2052 [3] AIR 2008 SC 2019 [4] 1994 (1) ALT 140 [5] 1994 (I) A.P.L.J. 254 (HC) (DB) [6] 1996 (2) ALT 235 [7] 1996 (2) A.P.L.J. 68 (DNC) [8] 2002 (4) ALD 3 (SC) [9] 2004 (1) ALD 400 (DB) [10] 2004 (3) ALD 821 [11] 2007 (2) ALD 591 [12] 2007 (4) ALT 784 [13] 2010 (1) ALD 389