IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No.392 OF 2007 Between: Thotakura Govindu (died). Thotakura Vikunteswari and five others. - - - Appellants/ Plaintiffs. AND Marisetti Satyavathi and another. - - - Respondents/ Defendants. The Court made the following: HON’BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No.392 OF 2007 JUDGMENT: The Second Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), is directed against the Judgment and Decree in A.S.No.192 of 2004, dated 29-01-2007, on the file of the learned VII Additional District Judge, Kakinada, East Godavari District, whereunder and whereby the Judgment and Decree passed in O.S.No.268 of 1997, dated 23-09-2004 by the learned Principal Senior Civil Judge, Kakinada, East Godavari District, were confirmed. 2. The appellants herein are plaintiffs and the respondents herein are defendants in the suit. For better appreciation of facts and for the sake of convenience, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The brief facts, that are necessary for disposal of the present Second Appeal, may be stated as follows : It is agreed by the defendants, who are no other than the sisters of the deceased plaintiff, to sell the plaint schedule property of an extent of Ac.3.62 cents land for a total consideration of Rs.2,37,000/- to the deceased plaintiff under an agreement of sale dated 11-07-1994. The plaintiff paid an amount of Rs.50,000/- as advance and the remaining amount was agreed to be paid within one year from the date of agreement of sale. However, again on 03-10-1994 an amount of Rs.30,000/- was paid by the deceased plaintiff to the defendants as part of the sale consideration. One T. Rajeswarudu, who is the son of T. Ammiraju, filed O.S. No.473 of 1995 against the deceased plaintiff, his son and the defendants herein, seeking the relief of permanent injunction in respect of land of an extent of Ac.0.92 cents in Survey No.356/2, which is part of the plaint schedule property in the instant case. The said Ammiraju is no other than the second brother of the defendants. Ultimately, O.S. No.473 of 1995 was decreed ex parte, in favour of Rajeswarudu, on 14-08-1996. 4. It was contended by the deceased plaintiff before the trial Court that the defendants have no title to an extent of Ac.0.92 cents out of Ac.3.62 cents of land, he was willing to pay the balance sale consideration in respect of the remaining land of Ac.2.70 cents, which comes to Rs.96,767-95 paisa and prayed to pass a decree for specific performance of contract only in respect of the remaining land. The learned trial Court having partly decreed the suit, refused the relief of specific performance of contract but directed the defendants to return the part of sale consideration, which they have received earlier. The appellate Court in A.S. No.192 of 2004 declined to grant specific performance of contract and confirmed the judgement passed by the learned trial Court. 5. The Second Appeal has been admitted on the ground that the following substantial questions of law are involved for consideration : 1. Whether the Courts can use the discretionary power arbitrarily? 2. Whether the Courts can deny the specific performance of agreement when it is believed the execution of agreement and passing of consideration? 3. Whether the appellate Court can say that discussion of the evidence is not necessary in appeal? 4. Whether the trial Court can show the discretion on one side, where equity takes place? 6. The learned counsel appearing for the appellants-plaintiffs contends that both the courts below having held that the agreement of sale dated 11-07-1994 is true and valid, refused to grant the relief of specific performance on account of O.S. No.473 of 1995, filed by one Rajeswarudu for an extent of Ac.0.92 cents of land, which is part of the plaint schedule property, was decreed. The learned counsel appearing for the appellants-plaintiffs further submitted that the appellate Court has not reassessed the evidence on record and made an observation that in view of the documentary evidence adduced on either side, there is no need to go into the oral evidence in detail. 7. The above stated disputed questions, basing on which this Second Appeal was initially admitted, are in fact no substantial questions of law. Further, it is well settled that the relief of specific performance is a discretionary remedy and the Court is not bound to grant the decree for specific performance merely because it is lawful to do so. This Court can only interfere when the discretion exercised by the Courts below is totally opposite to the rules of procedure, established principles of law or the order is passed on perverse reasoning. 8. In the instant case, both the Courts below considering the relationship between the parties to the suit and the fact that a decree for permanent injunction was earlier passed in favour of Rajeswarudu, who is no other than one of the brother’s son of the defendants, in respect of Ac.0.92 cents of land, which is part of the plaint schedule property in the present case, rightly declined to grant decree for specific performance in respect of the remaining property. 9. Reliance is placed by the learned counsel appearing for the appellants-plaintiffs in the case of K. Subba Rao, Raghubar Dayal and N. Rajagopala Ayyangar[1], wherein the Supreme Court held that : “Delay is not a ground to refuse the relief of specific performance and proof of waiver or abandonment of right is not a precondition for refusal.” 10. The judgment relied upon by the learned counsel appearing for the appellants is not applicable to the case on hand. In the present case both the Courts below recorded concurrent findings relating to the conduct of the plaintiffs which disentitle them to the decree of specific performance of contract as the plaintiff and his son being parties to O.S. No.473 of 1995 which was filed by Mr. Rajeswarudu against the defendants herein and the deceased plaintiff and his son. There is no dispute that the defendants claim the plaint schedule properties under Exs.B.1 and B.2 as registered gift deeds executed by their father by name Janakayya on 08-06-1984 and also their father executed a settlement deed for an extent of Ac.0.92 cents in favour of the sons of Ammiraju and deceased plaintiff. Rajeswarudu, claiming rights through his father-Ammiraju, filed a suit in O.S. No.473 of 1995 for permanent injunction against the deceased plaintiff, his son and the defendants herein. The findings of fact and law recorded by the trial Court are based on evidence and reasoning. They cannot be said to be either perverse or contrary to the evidence on record. Keeping in view the peculiar facts and circumstances of the case, the judgment in O.S. No.268 of 1997 passed by the lower court, was confirmed by the appellate Court and the Courts below did not grant the relief of specific performance of the contract. No substantial question of law is involved for determination in this Second Appeal. For the foregoing reasons, the Second Appeal is dismissed. There shall be no order as to costs. _________________ R. KANTHA RAO, J Date: 21-12-2010 DSH. [1] AIR 1965 SC 1405 (1)