MANCHINENI VENKAYYA Vs. MANCHINENI SESHAYYA
HIGH COURT OF ANDHRA PRADESH
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Umamaheswaram, J. -
(1.) THIS second appeal is brought by the Plaintiff as against the judgment and decree of the Subordinate Judge of Guntur in Appeal Suit No. 417 of 1948 reversing the judgment and decree of the District Munsif of Guntur in Original Suit No. 207 of 1947. The appellant herein filed a suit for specific performance of a contract, dated 16 -11 -46, entered into by the 1st Defendant agreeing to sell the plaint schedule property to him, for a declaration that the sale deed executed by the 1st Defendant in favour of the 2nd Defendant on 8 -4 -1947 was not binding upon him and for delivery of possession of the property.
In the plaint he alleged that he purchased the stamp papers and was always ready and willing to perform the contract, but that the 1st Defendant put off the execution of the sale deed on some false pretext or other. Having learnt that a sale deed was executed in favour of the 2nd Defendant by the 1st Defendant with false recitals about the existence of an alleged earlier agreement dated 25 -8 -1946, the present suit was instituted for specific performance and other incidental reliefs.
(2.) THE 1st Defendant was ex parte and did not file any written statement. The 2nd Defendant contended that the suit agreement was not true, that the 1st Defendant took an advance of Rs. 800/ -from him and executed an agreement of sale dated 25 -8 -1946, that the sale deed dated 8 -4 -1947 was executed in his favour in pursuance of the agreement of sale and that the suit was consequently not maintainable. In paragraph 7 of the written statement, he badly denied the Plaintiff's willingness to perform the contract. The two main issues that were raised in the trial Court were as follows:
1. Whether the contract of sale dated 16 -11 -1946 in favour of the Plaintiff is true, supported by consideration and binding on the 2nd Defendant?
2. Whether the contract of sale dated 25 -8 -1946 in favour of the 2nd Defendant is true, supported by consideration and binding on the Plaintiff?
The District Munsif in a careful and well considered judgment held that the contract of sale executed in favour of the Plaintiff and marked as Ex. A -1 was true and that
with a view to defeat this contract of sale, Ex. B -2 was brought into existence subsequently' lay the Defendants in collusion by ante -dating it.
On those findings, he decreed the suit with costs directing mesne profits to be determined in separate proceedings under Order 20, Rule 12, Code of Civil Procedure
The 2nd Defendant preferred Appeal Suit No. 417 of 1948 in the Court of the Subordinate Judge of Guntur. The Subordinate Judge raised three points for decision in the appeal, which run as follows:
1. Whether the contract in favour of the Plaintiff is true?
2. Whether the contract in favour of the 2nd Defendant is true as contended by 2nd Defendant or ante -dated as contended by the Plaintiff?
3. Whether the Plaintiff is entitled to specific performance?
On point 1, he held that the contract Ex. A -1 was true and that he saw no substance in the suggestion that the contract Ex. A -1 was ante -dated. He found on point 2 that Ex. B -2 was ante -dated. In paragraph 18 he held as follows:
The 2nd Defendant and the Plaintiff are admittedly enemies. I see no improbability of 2nd Defendant asking the 1st Defendant to agree to ante -dating it, so that he may get an advantage over the Plaintiff.
Having confirmed the findings of the District Munsif on issues 1 and 2, the learned Subordinate Judge ought to have dismissed the appeal. But point No. 3 was raised as arising for determination apparently by reason of the appellant raising ground No. 12 in the memorandum of appeal, namely, that the Plaintiff had to show that he was always ready and willing to perform his part of the contract, and that he admittedly repudiated his own contract. The Subordinate Judge held on this new point in paragraphs 24 and 26 of his judgment, that as the Plaintiff himself, repudiated the contract, he was not entitled to specific performance under law and consequently, allowed the appeal with costs.
(3.) AS against the judgment and decree of the (Prl) Subordinate Judge, the Plaintiff has preferred the above second appeal. The learned Advocate for the appellant contended that the Subordinate Judge erred in permitting the 2nd Defendant to raise a new point for determination, which was not to be found in the pleadings or in the issues and also in holding that the Plaintiff repudiated the contract. I agree that both the contentions are valid in law and that the second appeal should be allowed and the judgment of the trial Court restored.;
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