THE HON'BLE SRI JUSTICE B.PRAKASH RAO Second Appeal No.474 of 1995 JUDGMENT: In this second appeal filed under Section 100 CPC, the appellant is the unsuccessful plaintiff in the lower appellate Court. He seeks to assail the judgment and decree, dated 30.04.1994, passed by the learned District Judge, Guntur in A.S.No.114 of 1988 allowing appeal in-part, at the instance of the respondents, thereby setting aside the judgment and decree, dated 02.02.1988, obtained by him in O.S.No.601 of 1981 on the file of the learned Munsif Magistrate, Mangalagiri. The brief facts of the case are that the appellant had filed the suit seeking specific performance of an agreement of sale, dated 27.06.1978, wherein the respondent has agreed to sell the suit schedule property of an extent of Ac.0.73 cents of land, for a total consideration of Rs.3,500/-, out of which, Rs.3,000/- was paid and the balance amount of Rs.500/- was agreed to be paid at the time of registration and possession was also delivered at the time of the agreement. However, subsequently in lieu of payment of balance sale consideration, it was agreed between the parties that the defendant would keep the plaint schedule land in his possession for the years 1978-79 and 1979-80, raise crops and enjoy the usufruct thereof towards adjustment of balance sale consideration, and thereafter, the defendant shall re-deliver the possession of the plaint schedule land. However, there is no compliance in regard to the terms of the agreement. Therefore, the plaintiff got issued a registered notice, dated 04.10.1980, Ex.A2, to which, the defendant has given reply, dated 21.10.1980, Ex.A3. Thereafter, the present suit was filed on 25.06.1981 seeking specific performance of agreement of sale. The said suit was inter alia contested by the respondent- defendant denying the entitlement of the appellant-plaintiff for any such relief and denying the fact of any delivery of possession. In the light of the pleadings of both the parties, the trial Court framed appropriate issues. Both sides adduced evidence. On behalf of the appellant-plaintiff, PWs.1 and 2 were examined and Exs.A1 to A5 were filed. On the other hand, on behalf of the respondent- defendant, DWs.1 to 3 were examined, while no documentary evidence was marked. After considering the rival contentions and the material on record, the trial Court decreed the suit holding that the suit agreement of sale being an admitted one, the appellant-plaintiff is entitled to the relief sought for. Aggrieved thereby, the respondent-defendant filed an appeal before the lower appellate Court in A.S.No.114 of 1988 and the lower appellate Court, after consideration of the material on record once again, did not agree with the conclusions of the trial Court and allowed the appeal by setting aside the judgment and decree of the trial Court. The lower appellate Court proceeded to reject the claim of the appellant-plaintiff for specific performance on twin grounds – firstly that in spite of exchange of notices, dated 04.10.1980 and 21.10.1980, there has been no immediate action or follow-up action by the plaintiff and the suit was filed later, on 25.06.1981, resulting in delay and secondly that the condition of re-delivery of possession to the respondent herein was also not accepted. Hence, the lower appellate Court held that the appellant-plaintiff is entitled to alternative relief of recovery of Rs.3,000/- and accordingly, allowed the appeal in-part. Having heard the leaned counsel on either side and perused the material on record, the only point which arises for consideration is as to whether the judgment and decree of the lower appellate Court in refusing to grant the relief of specific performance of agreement of sale in favour of the appellant-plaintiff is sustainable or not, on the facts and circumstances of the case? There is no dispute with regard to execution of suit agreement of sale and also payment of substantial part of sale consideration of Rs.3,000/-, out of Rs.3,500/- and thereafter though according to the appellant-plaintiff, there was an understanding between him and the respondent-defendant to put the respondent in possession for two years and thereafter take back the possession, yet the defendant did not honour the agreement and no document has been executed. Hence, the appellant-plaintiff filed the suit on 25.06.1981. There is no dispute with regard to the evidence between the parties in respect of execution of the suit agreement. The only aspect, which prevailed over the lower appellate Court, was exchange of notices in October, 1980 and the suit being filed on 25.06.1981 and there was no immediate or follow-up action on the part of the appellant-plaintiff and therefore, he is not entitled to seek indulgence of the Court. Further, the condition of re-delivery of possession was also doubted. This approach on the part of the lower appellate Court is not sustainable since even taking into account the date of reply, dated 21.10.1980, or going back to the date of agreement, dated 27.06.1978, the suit which was filed on 25.06.1981 cannot be said to be barred by limitation. The Law of Limitation allows a suit to be filed within three years from the date of refusal. Even taking into consideration the date of reply, dated 21.10.1980 or even the date of agreement of suit itself, the suit is well within the time. Further, in the absence of any such factual circumstances, the lower appellate Court ought to have exercised the powers under Section 20 of the Specific Relief Act, 1963 and ought not to have rejected the claim of appellant-plaintiff merely because he has approached the Court with a little delay, though within the limitation. On the face of it, the lower appellate Court was not right in rejecting the relief on such grounds. The second appeal is therefore allowed setting aside the judgment and decree, dated 30.04.1994, passed by the learned II Additional District Judge, Guntur in A.S.No.114 of 1988, and the judgment and decree, dated 02.02.1988, in O.S.No.601 of 1981 on the file of the learned Munsif Magistrate, Mangalagiri is restored. No costs. _____________________ B.PRAKASH RAO, J Dt.05.08.2010 VGB