THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1045 of 2009 JUDGMENT: The respondent filed O.S.No.34 of 1998 against the appellants in the Court of Principal Junior Civil Judge, Avanigadda for the relief of specific performance of an agreement of sale. It was pleaded that the mother of the appellants, by name Md.Begum entered into an agreement of sale on 31.05.1985 (Ex.A.1) with the respondent for sale of Ac.0.09-1/3 cents in Survey No.19 of Challapalli Revenue Village for a consideration of Rs.3,000/- per cent, Rs.27,900/- in all. A sum of Rs.4,000/- is said to have been paid on the date of agreement, Rs.5,000/- on 08.12.1986 and another Rs.5,000/- on 05.01.1987. It was stated that even before the contract was concluded, Md.Begum died and that the appellants herein got issued a notice dated 26.04.1996 (Ex.A.4) to the respondent by making reference to the agreement, dated 31.05.1985 and agreeing to execute the sale deed, in case the respondent is ready to pay a sum of Rs.5,000/- per cent. The respondent in turn is said to have got a reply issued forthwith agreeing to purchase the property at enhanced consideration and by stating that the amount of Rs.14,000/- which was paid earlier be taken into account. The respondent pleaded that having got issued Ex.A.4, the appellants changed their mind and demanded the consideration of Rs.50,000/- per cent. With these and other allegations, the respondent prayed for the relief of specific performance of agreement of sale. The appellants filed a written statement opposing the suit. They stated that the Ex.A.1 is barred by limitation and their conditional offer made through Ex.A.4 proposing to sell the property at the rate of Rs.15,000/- per cent did not fructify. They pleaded that the respondent did not agree to purchase the property at the offered rate and thereby the contract stood frustrated. The trial Court decreed the suit through judgment, dated 19.11.2001. The appellants filed A.S.No.4 of 2002 in the Court of Senior Civil Judge, Avanigadda. The appeal was dismissed on 05.08.2010. Hence, this second appeal. Sri Gangadhar Chamarthy, learned counsel for the appellants submits that the trial Court and the lower appellate Court proceeded on the assumption that the original agreement of sale Ex.A.1 can constitute the basis for granting the relief, though the respondent herself pleaded that Ex.A.1 became time barred. He further submits that Ex.A.4 cannot be said to be a fresh contract, inasmuch as the offer made therein was not expected by the respondent. Sri C.Raghu, learned counsel for the respondent on the other and submits that the appellants admitted the fact that their mother executed an agreement of sale and received substantial portion of the consideration and that in acknowledgment of the obligation thereunder, the appellants got Ex.A.4 issued, though by indicating an enhanced amount of consideration. He submits that with a view to bring a quietus to the issue, the respondent agreed to purchase the property at the enhanced consideration of Rs.5,000/- per cent, but the appellants came forward with an unrealistic plea that the figure mentioned in Ex.A.4 is Rs.15,000/- per month. He further submits that the trial Court and the lower appellate Court have taken correct view of the matter and no substantial question of law arises for consideration. On the basis of the pleadings before it, the trial Court framed only one issue for consideration viz., whether the plaintiff is entitled for specific performance of contract as prayed for? . On behalf of the respondent, P.Ws.1 and 2 were examined and Exs.A.1 to A.11 were filed. On behalf of the appellants, D.W.1 was examined and Exs.B.1 to B.3 were filed. The suit was decreed and in A.S.No.4 of 2002 filed by the appellants herein, the lower appellate Court framed two points for its consideration viz., whether the suit is barred by limitation and whether the plaintiff is entitled for specific performance as prayed for. Both the points were answered in favour of the respondent. It may be true that Ex.A.1, the original agreement of sale executed by the mother of the appellants would not have constituted the basis for the suit. In all fairness, the respondent herself stated that Ex.A.1 left to itself is barred by limitation and that the suit is based upon Ex.A.4 got issued by the appellants on 26.04.1996. A perusal of Ex.A.4 discloses that the appellants agreed to execute the sale deed, in case the respondent pays the consideration at Rs.,5,000/- per cent. Hardly by the time they received the acceptance by the respondent, the appellants changed their mind and stated that the figure mentioned by them in Ex.A.4 is Rs.15,000/- per cent. This contention is not at all supported by evidence. The figure ‘Rs.5,000/-’ was clearly typed in the notice and it is only in their office copy, that they made an overwriting of the figure ‘Rs.15,000/-’. Section 62 of the Contract Act mandates that whenever any novation, rescission or alteration of the contract takes place, the original contract need not be performed. In other words, what becomes enforceable is the novated or altered contract. The respondent wanted the specific performance of such contract, which in the instant case is Ex.A.4. Once the respondent agreed to the conditions stipulated in Ex.A.4, a fresh contract has emerged and she was entitled to seek the relief of specific performance. The trial Court and the lower appellate Court examined the matter from the correct perspective and granted the relief. This Court is not inclined to interfere with the same. Therefore, the second appeal is dismissed. There shall be no order as to costs. __________ 23.12.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1045 of 2009 Date: 23.12.2011 JSU