HON’BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.1280 of 2011 ORDER: The respondent filed O.S. No. 48 of 2004 on the file of the Court of the I Additional Senior Civil Judge, Ongole against the appellant for the relief of specific performance of an agreement of sale dated 23.1.2011. Through the said agreement, the appellant agreed to sell an extent of 21 gadies described in suit schedule for a consideration of Rs.1,47,000/- and that a sum of Rs.25,000/- was paid as advance on the date of agreement. The respondent and the appellant are said to have gone to the office of the Sub-Registrar for concluding the transaction, but on noticing the discrepancy as regards the extent and description of the property, the execution of the sale deed was not effected and that the appellant agreed to get a deed of rectification in his name. The respondent further pleaded that though a deed of rectification was obtained, the appellant did not move in the matter even after receiving notices. The appellant filed a written statement. He did not dispute the execution of the agreement. However, it was pleaded that the balance of consideration was to be paid before 10th of March, 2001, but on account of inability on the part of the appellant to pay the consideration, the transaction was not concluded and thereby, the agreement stood cancelled. The appellant denied the allegation of the respondent that the balance of consideration was ready and the parties have come to the Sub-Registrar’s Office. It was also alleged that the respondent alone is liable for the delay in concluding the transaction. The trial Court decreed the suit through judgment dated 4.5.2006. A.S. No. 111 of 2006 filed by the appellant before the Court of I Additional District Judge, Ongole was dismissed on 18.4.2011. Hence, this Second Appeal. Sri M. Venkatanarayana, learned counsel for the appellant submits that the respondent violated the terms of contract and was never ready and willing to perform his part of the contract. He submits that though the appellant filed I.A. No.182 of 2011 under Order VI Rule 17 of C.P.C. before the lower appellate Court seeking permission to amend the written statement, no orders were passed therein and the appeal was dismissed. Sri V.R. Avula, learned counsel for the respondent submits that the appellant was not consistent in his stand. He submits that at one stage the appellant admitted the execution of the agreement and at a subsequent stage, he denied the very execution thereof. Learned counsel submits that the deed of rectification was obtained by the appellant himself, but he changed his mind thereafter. Learned counsel submits that the concurrent findings of fact do not warrant interference. The suit filed by the respondent herein against the appellant was the one for specific performance of an agreement of sale in respect of a plot of land in Ongole Town. In the written statement filed by the appellant, the execution of the agreement of sale was not denied. However, certain excuses were pleaded. The trial Court framed only one issue for consideration, namely, whether the respondent is entitled for the specific performance of the suit sale agreement as prayed for. On behalf of the respondent, P.Ws. 1 and 2 were examined and Exs. A1 to A8 were filed. The appellant deposed as D.W.1, but he did not file any documents. On the suit being decreed, the respondent filed A.S. No.111 of 2006. No specific points were framed by the lower appellate Court and the discussion was undertaken with reference to the sole issue framed by the trial Court and the appeal was dismissed. The relief of specific performance of a contract is no doubt discretionary. However if a plaintiff makes out a case and proves that the defendant did not perform his part of the contract, without there being any proper basis, the relief must be granted unless it is prohibited by any specific provision of law. The conduct of the parties would also become relevant. The respondent based his claim on an agreement of sale dated 23.1.2001 stating that it was executed by the appellant. The appellant did not deny the execution thereof. Though the plea of the respondent that himself and the appellant proceeded to the office of Sub-Registrar was denied in the written statement, in the course of trial, at one stage, the appellant has gone to the extent of denying the very execution of Ex.A1 agreement. He has also stated that the deed of rectification marked as Ex.A8 was obtained by the respondent himself. Even that was proved to be not correct. The lack of bona fides on the part of the appellant is evident from the fact that though at one stage, he denied the execution of the sale deed, Ex.A1, he raised the plea that the respondent does not have the financial capacity to purchase the property. The record discloses that the agreement of sale ,Ex.A1 was executed by the appellant and the respondent was ready and willing to perform his part of the contract, ever since the execution of Ex.A1 The trial Court and the lower appellate Court have taken correct view of the matter. Though no specific order was passed in I.A. No.182 of 2011, it is deemed to have been rejected in view of the dismissal of the appeal itself. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J DATE: 20th December, 2011 pnb