GOPALA KRISHNA TAMADA, J. ( 1 ) AGGRIEVED by the common judgment dated i 4. 6. 2004, delivered by the learned ii Additional Senior Civil Judge, Kakinada in o. S. Nos. 170 and 185 of 1997, the unsuccessful defendants in both the suits preferred these two appeals. ( 2 ) THE defendants in O. S. No. 170 of 1997 are appellants in A. S. No. 2804 of 2004 and the defendants in O. S. No. 185 of 1997 are appellants in A. S. No. 2834 of 2004. Plaintiffs in both the suits are one and the same. ( 3 ) SINCE these two appeals arise out of the same common judgment rendered by the Court below, they are being disposed of by this common judgment. For the sake of convenience, the parties will hereinafter be referred to as plaintiffs and defendants. ( 4 ) THE brief facts, according to the averments of the plaint in O. S. No. 170 of 1997 are that, the plaint schedule property admeasuring an extent of Acs. 7. 01 cts of dry land situated at Suryaraopet in Kakinada municipality is belonging to the sole defendant Adikesava Reddy, who agreed to sell the same to the plaintiffs at the rate of Rs. 7,00,000/- per acre and accordingly, he executed an agreement of sale in favour of the plaintiffs on 16-4-1994, on payment of Rs. 20,00,000/- towards advance sale consideration. As the said land was involved in a land acquisition proceeding before the government, the defendant agreed to execute the registered sale deed after the land was released from land acquisition and change of its category from afore-station into light Industrial area, and he further agreed to intimate the result of the proceedings in connection thereto. However, as there was no information from the defendant, the plaintiffs were constrained to issue notice dated 31-1-1995, calling upon the defendant to execute the sale deed, but, as the defendant did not receive the said notice, the plaintiffs got issued another notice dated 30-11-1995 calling upon the defendant to execute the sale deed in their favour by 30-12-1995. ( 5 ) IT is further averred that at the instance of the defendant, the plaintiffs carted earth and levelled the land by spending an amount of Rs. 1,50,000/- and they also made ready a sum of Rs. 7,52,000/- for depositing before the Municipality towards conversion charges on behalf of the defendant. ( 5 ) IT is further averred that at the instance of the defendant, the plaintiffs carted earth and levelled the land by spending an amount of Rs. 1,50,000/- and they also made ready a sum of Rs. 7,52,000/- for depositing before the Municipality towards conversion charges on behalf of the defendant. Though the said fact was intimated to the defendant, he did not respond. According to the plaintiffs, they are always ready and willing to get the sale deeds executed in their favour and to pay the balance sale consideration. However, on 15. 11. 1996 the defendant got issued a notice stating that he was not bound to execute any sale deed. On exchange of notices, the defendant called the plaintiffs to madras promising to settle the matter and when the plaintiffs went to Madras, the defendant promised to come to Kakinada on 10-4-1997, but he did not turn up. Hence the plaintiffs were constrained to file the above suit. ( 6 ) ON the other hand, the averments of the plaint in O. S. No. 185 of 1997 are that Adikesava Reddy who is arrayed as defendant No. 6 in the said suit, entered into an agreement of sale with the plaintiffs on 16-4-1994 in respect of the schedule property of that suit, on behalf of Defendants 1 to 5, in the capacity of their General Power of attorney Holder, to sell the land in an extent of Ac. 2-32 cents, which is also situated at suryaraopet village of Kakinada Municipality, at the rate of Rs. 7,00,000/- per acre and for a total consideration of Rs. 16,24,000/ -. It is further stated in the plaint that by the time of entering into the agreement, a writ petition was filed by the defendant for withdrawal of the plaint schedule lands from land acquisition and as the Government agreed not to acquire the said land, the writ petition was withdrawn. Thereafter, the kakinada Municipality filed another Writ petition No. 8645 of 1989 for releasing of the said land from the Master Plan. However, the said writ petition filed by the kakinada Municipality for afore-station and light industrial area purpose was disposed of with a direction to the Government to take decision within three months on a representation to be made by the defendants. However, the said writ petition filed by the kakinada Municipality for afore-station and light industrial area purpose was disposed of with a direction to the Government to take decision within three months on a representation to be made by the defendants. As the defendants agreed that they would intimate the result of the matter regarding the release of the land from land acquisition proceedings, and change of category from afore-station to light industrial area, the plaintiffs did wait for information, so that, regular sale deeds can be taken by paying the balance sale consideration at the time of registration, after deducting an amount of rs. 5,00,000/-, which was paid as advance. However, as there was no information from the side of defendants about the subsequent developments, the plaintiffs got issued a registered legal notice dated 31-1-1995 to the D6 calling upon him to produce the power of attorney, judgments and all other connected papers including the encumbrance certificate. But the 6th defendant did not receive the said notice. Thereafter, the plaintiffs got issued another notice dated 30-11-1995 calling upon the 6th defendant to execute a regular sale deed by 30-12-1995. Subsequently, on 15. 11. 1996, the defendants got issued a notice stating that the final notification was granted by the A. P. Government as per Memo dated 15. 4. 1996 and further informed that the defendants are not bound to execute any sale deed, for which the plaintiffs got issued a reply notice. Thereafter, at the instance of the 6th defendant, the plaintiffs went to Madras. But, as the 6th defendant, being the General power of Attorney holder of the other defendants, promised to come to Kakinada on 10-4-1997 and settle the matter, they returned and waited for his arrival. But he did not turn up and execute the sale deeds. According to the plaintiffs, they carted the earth by spending an amount of Rs. 1,50,000/- to level the land and also made ready a sum of Rs. 7,52,000/- for depositing the same before the Municipality towards conversion charges as requested by the defendants and the said fact was also informed to the defendants, for which there was no reply. According to the plaintiffs, they carted the earth by spending an amount of Rs. 1,50,000/- to level the land and also made ready a sum of Rs. 7,52,000/- for depositing the same before the Municipality towards conversion charges as requested by the defendants and the said fact was also informed to the defendants, for which there was no reply. As the plaintiffs are always ready and willing to take the sale deed by paying the balance sale consideration and as the defendants have not come forward to execute the registered sale deed, the plaintiffs filed the suit for specific performance of agreement of sale dated 16. 4. 1994. ( 7 ) PER contra, defendants 1, 2, 4 and the General Power of Attorney holder- adikesava Reddy who is arrayed as D-6 filed written statement in O. S. No. 185 of 1997 and the said Adikesava Reddy being the sole defendant in O. S. No. 170 of 1997 filed his written statement in the said suit and both the written statements are similar. As the defendants 2, 3 and 5 in O. S. No. 185 of 1997 died, their legal representatives were brought on record. ( 8 ) IN both the written statements, the defendants admitted the execution of agreements of sale and also receiving of advance sale consideration. However, it is averred that though the Government of andhra Pradesh dropped the land from the land acquisition, the Kakinada Municipality changed the nature of the land from that of afore-station and representations were filed questioning the said memo. The writ petitions filed by the Kakinada Municipality were disposed of with a direction that the petitioners therein have to file representations before the Government within three weeks and the Government shall consider the decision taken in G. O. Ms. No. 81. Accordingly, representations were submitted to the Government on 22. 3. 1994 and a memo dated 15. 4. 1996 was issued by the department of Municipal Administration calling for objections, if any, for the change of the nature of the land from afore-station to light industrial use. In the meanwhile, the municipality asked the landowners i. e. , the defendants to pay developmental charges as per G. O. Ms. No. 158 dated 22. 3. 1996. 4. 1996 was issued by the department of Municipal Administration calling for objections, if any, for the change of the nature of the land from afore-station to light industrial use. In the meanwhile, the municipality asked the landowners i. e. , the defendants to pay developmental charges as per G. O. Ms. No. 158 dated 22. 3. 1996. As against the said order, directing them to pay the developmental charges, the defendants approached this Court and filed writ Petition No. 16537 of 1996 and the same is pending. It is further stated that a representation dated 30-5-1996 for exemption of payment of developmental charges to a tune of Rs. 7,56,180/- was also filed and the same is pending consideration. While so, the Kakinada Municipality issued proceedings sated 22. 6. 1996 calling upon the defendants to pay the developmental charges, but the same was not paid due to pendency of the writ petitions. The 6th defendant has been informing the plaintiffs about the developments that were taking place from time to time. As almost all the hurdles have come to an end, and when the plaintiffs were asked to pay the balance sale consideration and get the sale deeds executed, the plaintiffs have never come forward. To the notice dated 30-11-1995, issued by the plaintiffs, the 6th defendant got issued a reply dated 15. 11. 1996 and the plaintiffs got issued another notice on 16. 12. 1996. According to the defendants, the developmental charges with regard to the plaint schedule lands are to be paid by the plaintiffs as agreed in the subsequent talks that took place between the parties and hence the question of deducting an amount of Rs. 7,52,000/- from the total sale consideration by the plaintiffs and making the remaining amount ready for the purpose of depositing with Kakinada Municipality towards conversion charges does not arise at all. The 6th defendant further made it clear in his notice dated 15. 11. 1996 that the agreements of sale dated 16. 4. 1994 are cancelled in view of the inaction on the part of the plaintiffs. The 6th defendant further made it clear in his notice dated 15. 11. 1996 that the agreements of sale dated 16. 4. 1994 are cancelled in view of the inaction on the part of the plaintiffs. Subsequently, during the talks that took place between the plaintiff and one K. V. V. Satyanarayana, a representative of the defendants, plaintiffs agreed to obtain sale deed with an understanding that the defendants should make all efforts to obtain exemption of the developmental charges and in case the defendants are unsuccessful, the plaintiffs have to pay the developmental charges. In the above circumstances, 10-4-1997 was fixed as the date for execution of sale deeds. Unfortunately, as the father of the defendants 1 and 6 had to undergo a surgery at Bangalore, the 6th defendant could not go to Kakinada to register the sale deeds and the said fact was informed to the plaintiffs over phone and suggested that registrations of the sale deeds can be done on 15. 4. 1997. As the plaintiffs did not agree to get the sale deeds executed unless and until orders are obtained from the government of Andhra Pradesh, with regard to the payment of developmental charges, the sale deeds could not be executed on 15. 4. 1997. The entire conduct on the part of the plaintiffs clearly establishes their unwillingness to obtain the sale deeds and as they were never ready, they are not entitled to specific performance. ( 9 ) BASING on the above pleadings, the court. below famed the following issues in o. S. No. 170 of 1997 for trial:1. Whether the plaintiff is entitled for a decree for specific performance of contract with possession in pursuance of the sale agreement dated 16. 4. 1994 or in the alternative refund of suit amount? 2. To what relief? ( 10 ) SO also, the following issues were framed for trial in O. S. No. 185 of 1997. 1. Whether the plaintiffs are always ready and willing to perform their part of contract? 2. Whether the plaintiffs forfeited the right to ask for the relief of specific performance? 3. Whether the plaintiffs are entitled for specific performance of contract or in the alternative refund? 4. To what relief? 1. Whether the plaintiffs are always ready and willing to perform their part of contract? 2. Whether the plaintiffs forfeited the right to ask for the relief of specific performance? 3. Whether the plaintiffs are entitled for specific performance of contract or in the alternative refund? 4. To what relief? ( 11 ) AS the plaintiffs in both the suits are one and the same and as both the suits were filed for a common relief of specific performance of contract against the 6th defendant in the capacity of General power of Attorney holder on behalf of other defendants in one suit and in his personal capacity in another suit, the Trial Court tried the suits together and recorded common evidence in O. S. No. 185 of 1997. ( 12 ) DURING the course of trial, the first plaintiff was examined as P. W. I and he got marked Exs. Al to A23. On the other hand, though D. W. I filed his chief affidavit, he did not turn up for being cross-examined and no documentary evidence was let in on behalf of the defendants. ( 13 ) ON an analysis of the entire evidence available on record, the Court below agreed with the case of the plaintiffs and decreed the suits by a common judgment dated 14-6-1997 holding that the plaintiffs are entitled to the relief of specific performance of the agreements of sale dated 16. 4. 1994 and directed the defendants to execute the sale deeds in favour of the plaintiffs after receiving balance sale consideration. The Court below further directed that the balance of sale consideration to be deposited within 30 days from the date of the judgment with due notice to the defendant and further directed the defendants to deliver possession of the schedule property after execution of the sale deed. ( 14 ) LEARNED Counsel for the defendants- appellants submitted that time is the essence of contract and he further submitted that though the agreements of sale were executed as early as in the year 1994, a duty is cast upon the plaintiffs to obtain the regular sale deeds in their favour and as they did not come forward, it shows that they are not ready and as such the Court below is not justified in decreeing the suits as prayed for. The learned Counsel further submitted that though the defendants have not chosen to let in any evidence on their behalf, the Court below has to assess the pleadings and the evidence available on record, besides the other material, to come to a conclusion that the plaintiffs are entitled to the decree of specific performance and in the instant case, without appreciating the said proposition of law, the Court below simply decreed the suits as prayed for. Further the learned Counsel has relied upon some of the judgments decided between: (1) Ramesh Chand Ardawatiya v. Anil panjwani, 2003 (4) ALD 10 (SC) = 2003 (7) SCC 350, (2) Thomas P. Abraham v. Aleyamma Abraham of Kerala High Court, 2004 (1) ICC 903, (3) P. Purushotham reddy and another v. M/s. Pratap Steels ltd. , 2002 (5) ALT 438 = 2003 (6) ALD (NOC) 145 and (4) Smt. Chand Rani (dead) by LRs. v. Smt. Kamal Rani (dead) by LRs. , JT 1993 (1) SC 74. ( 15 ) ON the contrary, the learned Senior counsel Sri Anantha Babu appearing for the plaintiffs submitted that nowhere in the entire pleadings it was stated that time is the essence of contract and for the first time, such a plea is put forth in this Court and as such, the said contention is to be rejected. The learned Counsel further submitted that the finding of the Court below in decreeing the suits in favour of the plaintiffs was not based solely on the pleadings and evidence of the plaintiffs, but on an analysis of the entire evidence available on record besides appreciation of all other material aspects. The learned counsel has also drawn our attention to the relevant portions of the judgments decided between (1) Andhra Pradesh Tobacco growers Co-operative Ltd. , Ongole v. Anjaneya Tobacco Co. and others, 1998 (5) ALD 188 and (2) Prakash Chandra v. Angadlal and others, 1979 (SC) 1241, at para 9. ( 16 ) IN the light of the said submissions made by both the learned Counsel, it is necessary for this Court to refer to section 102 of The Indian Evidence Act, which reads as under: section 102. On whom burden of proof lies: the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all, were given on either side. On whom burden of proof lies: the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all, were given on either side. Illustrations (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond not disputed and the fraud is not proved. Therefore, the burden of proof is on B. ( 17 ) FROM the above provision, it is clear that when the burden of proof lies on a party and that party fails to discharge the said burden, by giving evidence, he must fail. ( 18 ) IN the instant case, the agreements of sale are admitted by the defendants and it is also an admitted fact that some amount was also paid towards advance. In that view of the matter, it is for the defendants to establish that the plaintiffs have never come forward to get the sale deeds executed or registered and as such the defendants must fail. ( 19 ) IN the light of the submissions made by the learned Counsel for the appellants that time is the essence of contract, this Court has looked into the recitals of the agreements of sale, which make it clear that the sale deeds are to be executed on information given by the defendants about the change of nature of the land from afore-station to light industrial area. As contended by the learned Senior Counsel appearing for the plaintiffs, for the first time only the defendants have taken the present plea that time is the essence of contract, which, in our considered view, cannot be accepted at this length of time in view of the fact that the said agreements of sale would not disclose that the time is the essence of contract. Further, even from a perusal of the written statements, it is clear that according to the defendants, 10-4-1997 was fixed as the date for execution of sale deeds and the N. J. Stamp papers dated 27. 3. 1997 marked as Ex. A23, filed on behalf of the plaintiffs also make it clear that the plaintiffs are ready and willing to perform their part of contract. Hence the contention put forth by the learned Counsel for the appellants that time is the essence of contract; and in view of the long lapse in getting the registered sale deeds executed, the plaintiffs are not entitled for the relief of specific performance, cannot be accepted and is accordingly rejected. ( 20 ) IT is no doubt true that though the defendants did not choose to let in any evidence, a duty is cast upon the Court to decide the case purely basing on the merits but not on the ground that the defendants have not chosen to let in any evidence. But a perusal of the impugned judgment would reveal that the Court below, in fact, has gone into each and every aspect of the matter in coming to the conclusion that the plaintiffs are entitled for the equitable relief of specific performance and thus rightly decreed the suits. ( 21 ) AFTER all, specific performance is an equitable relief, given by the Court to enforce against a defendant the duty of doing what he agreed by contract to do; a plaintiff may, therefore, obtain judgment for specific performance even though there has not in the strict sense, been any default by the defendant. Hence the contention put forth by the learned Counsel for the appellants on that aspect also is rejected. ( 22 ) FURTHER, the cases cited by the learned Counsel for the appellants have no application to the facts of the case on hand. ( 23 ) FOR the aforementioned, the finding of the Trial Court that the plaintiffs are entitled to the relief of specific performance of agreement of sale is based on sound appreciation of the evidence as well as the other material available on record, which in our considered view, does not call for any interference at the hands of this Court and in that view of the matter, these two appeals are liable to be dismissed. ( 24 ) ACCORDINGLY, the Appeal Suits 2804 and 2834 of 2004 are dismissed as devoid of merit. No costs. However, having regard to the facts and circumstances of the case, time for depositing of balance sale consideration by the plaintiffs is extended by two months from today and on such deposit, the defendants are directed to deliver possession of the respective schedule properties to the plaintiffs.