IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF FEBRUARY, 2011 : PRESENT : THE HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No. 58 of 2011 BETWEEN: Sunku Mahalakshmamma, W/o. Late Venkateswarlu … Appellant AND Rajapatruni Dhanalakshmi W/o. Sri Satananda … Respondent THE HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No. 58 of 2011 JUDGMENT: This second appeal is filed against the decree and judgment dated 08.09.2010 in A.S.No.44 of 2009 on the file of the Judge, Family Court-cum-Addl. District Judge, Vizianagaram confirming the decree and judgment dated 11.07.2008 in O.S.NO. 95 of 2003 on the file of the Senior Civil Judge, Vizianagaram. 2. Heard the learned counsel for the appellant and the learned counsel for the respondent. 3. The defendant is the appellant. The plaintiff filed the suit for specific performance of agreement to sell dated 17.05.2001. The learned trial court after full trial decreed the suit and the learned first appellate court also confirmed the findings recorded by the trial court. The subject matter of the suit is a house property which the defendant agreed to sell to the plaintiff for Rs.3,06,000/- and received a sum of Rs.1,00,000/- as advance on the date of execution of the agreement to sell (Ex-A1). It was agreed upon by the parties under the agreement to sell dated 17.01.2001 that the plaintiff has to pay the balance of sale consideration within three months and on receipt of the said amount, the defendant has to execute a regular registered sale deed in favour of the plaintiff in respect of the property agreed to be sold. 4. The plaintiff filed the suit alleging that though she was always ready and willing to perform her part of contract, the defendant failed to execute the registered sale deed in terms of the agreement (Ex-A1) to sell and sought for a decree for specific performance of contract. 5. On the other hand, the appellant –defendant contended that plaintiff failed to pay the balance of sale consideration within the stipulated period and therefore she got issued a legal notice dated 12.10.2001 and that the plaintiff avoided to receive the said notice and therefore she again got issued another notice dated 21.11.2001 expressing her willingness to execute registered sale deed in terms of Ex-A1. But, the plaintiff did not give any reply to the notice. It is alleged that the plaintiff, suppressing the notices dated 12.10.2001 and 21.11.2001 issued by the defendant, got issued a notice dated 04.02.2002 to the defendant expressing her readiness and willingness to perform her part of contract and that the defendant issued reply notice dated 19.03.2002. The main contention of the defendant is that, time is the essence of the contract since it was stipulated in Ex-A1 that the plaintiff has to pay the balance of sale consideration within three months and since the plaintiff failed to do so, the plaintiff is not entitled for the relief sought. Both the courts below recorded con-current finding that the plaintiff is entitled for specific performance after evaluating the evidence on record. The reason recorded by the courts below is that since there were disputes between the family members of the defendant in regard to the partition of properties, the defendant was unable to perform her part of contract even though the plaintiff was always ready and willing to pay the balance of sale consideration. The courts below mainly relying on the evidence of DW2, who is the son of the defendant that there were some disputes in the family of the defendant regarding the partition of the properties and also relying on the fact that the defendant though filed chief affidavit, she did not appear herself for the purpose of cross-examination, had drawn adverse inference against the conduct of the defendant. Both the courts below upheld the contention of the plaintiff that PW2 is responsible for the litigation between the parties and he obstructed the defendant from appearing before the Court for the purpose of cross-examination. The findings recorded by both the courts below are based on evidence supported by proper reasoning and therefore, they do not suffer from any perversity. 6. Further, as rightly held by both the courts below, it is settled law that even though, it is mentioned in the agreement to sell (Ex.A1), that the contract has to be performed within a stipulated period, the time cannot be said to be the essence of the contract since the contract relates to immovable property. Therefore, there is no error of law also committed by both the courts below that the time is not the essence of the contract. To record the said finding, the courts below considered that there is no recital in Ex-A1 that in the event of non-payment of balance of sale consideration within the stipulated time, the amount paid as an advance shall be forfeited and his agreement shall be cancelled. 7. In this appeal, no question of law muchless a substantial question of law which is sine qua non for consideration of the second appeal arises and therefore, the second appeal is dismissed at the stage of admission. There shall be no order as to costs. ______________________ JUSTICE R.KANTHA RAO Dated: 04.02.2011 KRB/ysk THE HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No. 58 of 2011 JUDGMENT DATED: 04.02.2011 KRB/ysk