2011 AIR CC 1387 (AP) ::AIR 2011 (NOC) (SUPP) 1265 (A. P.) ::(2011) 2 ICC 585 ::(2011) 3 AndhLD 270

Andhra Pradesh High Court

Hon'ble Judge(s): V. V. S. Rao , J

(A) Evidence Act (1 of 1872) S. 114 — Suit for specific performance of contract of sale of immovable property — There is no presumption as to time being essence of contract — Suit based on an agreement for reconveyance — Time is always essence of such contract Contract Act (9 of 1872), S 46 Transfer of Property Act (4 of 1882), S 54 AIR 1993 SC 1742, AIR 1998 SC 970, AIR 2006 SC 2965 and AIR 2009 SC 2193, Rel on (Para 8,10)

(B) Evidence Act (1 of 1872) S. 3 — Testimony of a witness — Absence of suggestion in cross examination — Statement in chief remaining uncontroverted — Effect — It probalises version of witness AIR 1958 Punjab 440, AIR 1961 Cal 359 and AIR 1983 Cal 337, (1893) 6 R 67, Rel on (Para 15,19)

(C) Limitation Act (36 of 1963) Art. 54 — Suit for specific performance of agreement of reconveyance — Telegram requesting vendor to attend office of Registrar for execution of reconveyance deed — Telegram sent on proper address of vendor by vendee — Presumption is telegram is duly served in absence of rebuttal — Non-response to telegram — It is certainly refusal by vendor to perform his part of agreement within ambit of second part of Art 54 Evidence Act (1 of 1872), S 114 Specific Relief Act (47 of 1963), S 20 AIR 1998 SC 3021, Rel on (Para 19,21)

(D) Specific Relief Act (47 of 1963) S. 16 (C)— Continuous readiness and willingness to perform part of contract — Pleading and proof — Mandatory — Relevant factors for determination {" In a suit for specific performance of contract, it is mandatory that the plaintiff must plead that he/she has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him/her, other than the terms performance of which have been prevented/ waived by the defendant. The compliance with section 16 (c) of the Specific Relief Act, 1963, and Forma 47 or 48 of Appendix-A to the Code of Civil Procedure, 1908, is an important aspect, which cannot be ignored by the plaintiff. In addition to complying with such law of the pleadings, the plaintiff must prove that he/she is willing to perform his/her part of the contract and that there is compliance with the requirement of continuous readiness and willingness at all stages, from the date of agreement till the date of hearing of the suit. Mere statement in the pleadings and in the evidence would not be sufficient. The substance of the matter and surrounding circumstances including the conduct of the plaintiff are relevant to consider whether the plaintiff is ready and willing to perform that part of the contract. The exchange of notices between the parties prior to filing of the suit and the conduct of the parties are also relevant. T....