(1.) THIS second appeal is by the defendant before the trial Court and he is aggrieved by the lower appellate Court allowing the. appeal preferred by the plaintiff against the dismissal of the plaintiff's suit for specific performance.
(2.) THE facts which are not in dispute briefly stated are that the respondent/plaintiff entered into an agreement with the appellant herein one 21-12-1992 by which the appellant had agreed to sell his property bearing Sy. No. 469/ 2b measuring 2 guntas for Rs. 50,000/- and out of which appellant received Rs. 10,000/-as advance and agreed to execute the regular sale deed by receiving the balance sale consideration of Rs. 40,000/- at the time of registration. No time was stipulated under the sale agreement is also an undisputed fact. It is the plaintiff's case that he was ready and willing to perform his part of the contract and in this regard he approached the defendant several times and requested him to execute the sale deed by receiving the balance amount of Rs. 40,000/ -. The defendant went on postponing the execution of the sale deed, and the plaintiff therefore issued a legal notice to the appellant herein and as it had no effect, the plaintiff issued another legal notice and thereafter on the failure on the part of the appellant to respond to the legal notice in a positive way, the suit was filed for the relief of specific performance.
(3.) THOUGH the suit was filed on 21-12-95 for the aforesaid relief, the plaintiff later filed an application as per I. A. 4 on 11-3-96 for amendment of the relief of specific performance and claimed refund of only amount. The said amendment was allowed and later on 3-12-96 the plaintiff filed another application I. A. 6 seeking further amendment by striking off the prayer for recovery of the advance amount and to take the plea of recovery of amount as alternative plea along with the prayer for specific performance. This LA. was also allowed without notice to the respondent/ defendant.