THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY A.S.No.483 of 2008 and Cross Objections (Sr) No.6477 of 2008 COMMON JUDGMENT: This appeal is directed against the judgment and decree, dated 21.01.2008, passed by the Court of Senior Civil Judge, Bapatla, in O.S.No.124 of 2006. The respondent filed the suit for the relief of specific performance. He pleaded that the wife of the appellant was the owner of the suit schedule property and that the same was gifted in favour of the appellant, through a document, dated 11.04.1997. The appellant is said to have agreed to sell the property for a consideration of Rs.5,25,000/- and an agreement of sale was executed, on 12.05.2006, in this regard. A sum of Rs.1,00,000/- was said to have been paid, on the date of agreement, as advance. He complained that, though he has offered to pay the balance of Rs.4,25,000/- and requested the appellant to execute the sale deed, the latter was not forthcoming. Broadly, with these pleadings, the respondent prayed for the decree of specific performance of contract. The appellant opposed the suit, by filing a written statement. He alleged that the property does not exclusively belong to him and the house was constructed with the funds of the joint family. It was his case that, the gift deed was executed in his favour, only to facilitate the securing of permission, loan etc., and that he is not the true owner. He further alleged that, at a time when he was in a disturbed mood, in May 2006, at Bapatla, some of his friends have advised him to create some problem in the family, so that the members of his family will come down, and taking advantage of that situation, the alleged agreement was brought into existence, with the collusion of the respondent. He pleaded fraud, vis-à-vis the transaction. He denied receipt of any amount, much less Rs.1,00,000/-, as advance. Through the judgment under appeal, the trial Court found the agreement of sale as true and genuine, and decreed the suit without costs. While the appellant challenges the decree passed by the trial Court granting the relief of specific performance, the respondent filed Cross-objections, insofar as costs in the suit were denied to him. Sri N.Vidya Prasad, learned counsel for the appellant, submits that the trial Court did not take into account, the fact that the appellant is not the absolute owner of the property. He further submits that there is inconsistency among the depositions of PWs.1 to 3 and still the agreement of sale, was held proved. Learned counsel contends that the respondent did not deposit the balance of consideration in the Court, and thereby, it cannot be said that he was ready and willing to perform his part of contract. He submits that the Cross- objections are totally untenable. Sri Gade Venkateswara Rao, learned counsel for the respondent, on the other hand, submits that the appellant became absolute owner by virtue of the gift made to him and the plea of absence of title was raised only to avoid the obligation under agreement. He further submits that the agreement of sale was proved beyond any pale of doubt, through the depositions of the witnesses. The trial Court framed the following issues for its consideration: 1) “Whether the plaintiff is entitled for specific performance of the contract in pursuance of agreement of sale dt.12.05.2006 and for possession of the suit schedule property? 2) Whether the plaintiff is entitled for recovery of alternative relief of amount with interest as prayed for? 3) Whether the plaintiff is entitled to create a charge over the plaint schedule property for the realization of alternative relief amount? 4) To what relief?” To prove his case, the respondent deposed as PW.1 and he has also examined PWs.2 to 4. PWs.2 and 3 are the witnesses to the document and PW.4 is the scribe. The agreement of sale, dated 12.05.2006, was marked as Ex.A.1, and the legal notice issued by the respondent was marked as Ex.A.2. The postal acknowledgement thereof is Ex.A.3. The appellant deposed as DW.1 and he filed Ex.B.1. The trial Court discussed issues 1 to 3 together, and that answered all of them, in favour of the respondent. The points that arise for consideration are, a) Whether the respondent proved Ex.A.1? b) If the agreement is proved, whether there exist any circumstances to deny the specific performance to the respondent? The appellant did not deny the signatures on Ex.A.1. In addition to this circumstance, the respondent has examined PWs.2 and 3, who figured as witnesses to the agreement, as well as PWs.4, who scribed the document. Nothing was elicited in the depositions of these witnesses, to contradict their version, or to improbabilise their participation in the transaction. An effort was made by the learned counsel for the appellant to suggest that the attestation was not proper. It needs to be observed that the agreement of sale is not a document, which requires attestation, whether under the Indian Succession Act or the Evidence Act. The appellant is not able to disprove the presence of PWs.2 and 3, as witnesses. No serious effort was made to prove that the writing on Ex.A.1 is not that of PW.4. A meek attempt was made to suggest that Ex.A.1 was brought into existence, by taking advantage of the disturbance in the family of the appellant. Except making that suggestion, nothing was established. The appellant named certain persons, who were said to have colluded with the respondent in bringing about the transaction. None of those persons were examined as witnesses, nor attempts were made to summon them to the Court. Therefore, Ex.A.1 is proved beyond any pale of doubt. The relief of specific performance of contract is discretionary and the same is guided by the principles enshrined under Section 22 of the Specific Relief Act. It has already been found that the respondent proved Ex.A.1, by examining the scribe and witnesses. The appellant is not able to satisfy this Court that there exist any factors that warrant the relief of specific performance, particularly when he did not dispute the execution of Ex.A.1. The readiness and willingness on the part of the respondent is evident, from the fact that he deposited the balance of sale consideration in a bank. It is the appellant, who refused to receive the amount. There are no circumstances that warrant denial of the relief. For the foregoing reasons, the appeal is dismissed. The decree passed by the trial Court is upheld. The Cross-objections are filed, only in the context of denial of costs by the trial Court. The award of costs is always discretion of the Court. The trial Court took all the relevant facts into account and decreed the suit without costs. The respondent cannot claim costs in the suit as a matter of right. Hence, the Cross-objections are dismissed. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated:13.08.2009. GJ