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Andhra High Court · body

2012 DIGILAW 869 (AP)

TINI Laboratories (P) Ltd. v. Syed Basheer Ahmed

2012-09-13

G.BHAVANI PRASAD

body2012
Judgment : 1. The appeal is directed against the judgment and decree dated 10.02.1993 in O.S.No.38 of 1985 on the file of the Subordinate Judge’s Court, Nellore. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The plaintiff filed the suit for specific performance of the contract of sale dated 15.07.1984 and for re-conveyance of the plaint schedule property to him. The plaintiff claimed that the first defendant agreed to sell the plaint schedule property to him for Rs.56,000/- under the suit agreement. The first defendant was the owner and possessor of the first item of plaint schedule and he also held an agreement of sale in his favour in respect of the second item of plaint schedule, for which he had cist receipts for five years. The plaintiff, therefore, believed the title of the first defendant to be the enjoyer of the second item of plaint schedule under the doctrine of part performance. The price of the property was agreed at Rs.40,000/- per acre and the offer of the first defendant to sell both the items of plaint schedule at Rs.56,000/- was accepted by the plaintiff by entering into the suit agreement dated 15.07.1984. The first defendant promised to obtain consent of the owner of the second item of plaint schedule by making him an attestor to the sale deed to be registered in favour of the plaintiff. While so, the first defendant sold the second item of plaint schedule on 09.03.1985 to the second defendant and the first defendant started forcing the plaintiff to purchase only first item of plaint schedule for the same price, which in fact had included the price of second item of plaint schedule also. The first defendant returned the advance of Rs.1,000/- through a demand draft dated 12.02.1985 along with an Advocate’s notice dated 12.02.1985 and on 17.02.1985, the plaintiff issued a notice returning the demand draft. The first item of plaint schedule was sold by the first defendant to the second defendant on 11.02.1985 itself, which was not mentioned in the notice given by the first defendant on the same day and the second defendant started construction in the plaint schedule land with the knowledge of agreement of sale in favour of the plaintiff and the plaintiff was always ready and willing to perform his part of contract. The first defendant played fraud and cannot resile from the contract and both the defendants are liable for the suit reliefs. Hence, the suit. 4. The first defendant in his written statement stated that he is the absolute owner of the first item of plaint schedule while he purchased the second item of plaint schedule under an agreement of sale from one Shaik Hussain Sheriff and was in possession and enjoyment of both the items. The first defendant offered to sell only first item of plaint schedule to the plaintiff for Rs.56,000/- at Rs.40,000/-per acre under the agreement of sale dated 15.07.1984 and received an advance of Rs.1,000/-. The balance of Rs.55,000/- should be paid by the plaintiff within three months i.e., before 15.10.1984 on which the first defendant had to execute a sale deed. While so, the plaintiff issued a registered notice dated 11.10.1984 demanding execution of registered sale deed in respect of first item of plaint schedule and in reply notice dated 11.10.1984, the first defendant put the blame on the plaintiff for default in payment of the balance consideration of Rs.55,000/-. In spite of service of reply notice on the Advocate for the plaintiff, he did not deposit the balance consideration and the first defendant had to send a registered notice 22.01.1985 again demanding the plaintiff to deposit the balance sale consideration with interest at 18% p.a. from 15.10.1984 and informing that in default, the agreement will stand cancelled. The notice was served on the plaintiff on 28.01.1985 and he sent a reply claiming falsely that one Donthu Subbaramaiah was the tenant in the land from whom the land may be taken delivery. The first defendant gave a reply on 12.02.1985 denying any such lease to any third party and informed that the agreement of sale dated 15.07.1985 stood cancelled due to the failure to perform his part of the contract by the plaintiff and he returned the earnest money deposit of Rs.1,000/- through a demand draft dated 11.02.1985. The first defendant gave a reply on 12.02.1985 denying any such lease to any third party and informed that the agreement of sale dated 15.07.1985 stood cancelled due to the failure to perform his part of the contract by the plaintiff and he returned the earnest money deposit of Rs.1,000/- through a demand draft dated 11.02.1985. It was then that the plaintiff in his notice dated 17.02.1985 invented the story of sale of second item of plaint schedule also for the same consideration of Rs.56,000/-in total for both items of the plaint schedule and the first defendant stated that the writing in respect of second item of plaint schedule in the agreement dated 15.07.1984 must have been a subsequent interpolation which is not binding on him. The agreement does appear to be materially altered and is no longer binding on the first defendant. The first defendant further claimed the prices of the land to have gone down considerably in the meanwhile and to have sold first item of plaint schedule to the second defendant under a registered sale deed dated 11.02.1985 for Rs.14,700/-and to have put the second defendant in possession. The first defendant also stated that he and Shaik Hussain Sheriff sold second item of plaint schedule along with electric motor shed to the second defendant under a registered sale deed dated 09.03.1985 for Rs.24,000/-and put the second defendant in possession. The second defendant is stated to have constructed a factory building and installed machinery in the said premises and the first defendant never asked the plaintiff to pay more price than agreed. The first defendant never resiled from the contract and hence, the first defendant desired the suit to be dismissed with costs. 5. The second defendant in his written statement claimed that even the name of the second defendant was wrongly described by the plaintiff. He claimed to be unaware of the agreement of sale dated 15.07.1984 or any offer by the first defendant and acceptance in this regard. The second defendant claimed that they wanted to construct a factory for manufacture of drugs in bulk quantities for which purpose they agreed to the offer of the first defendant to sell first and second items of plaint schedule. The second defendant claimed that they wanted to construct a factory for manufacture of drugs in bulk quantities for which purpose they agreed to the offer of the first defendant to sell first and second items of plaint schedule. They got registered sale deeds dated 11.02.1985 and 09.03.1985 in respect of first and second items of plaint schedule respectively from the first defendant, and the first defendant and Shaik Hussain Sheriff jointly. The second defendant was put in possession of the land on the date of sale itself and constructed the factory building in the suit land even before service of notices in the suit. The necessary machinery was also installed and the factory started functioning. The second defendant claimed to have spent about Rs.7 to 8 lakhs for construction of the factory building and raising the ground level and Rs.20 lakhs for installing the machinery. The second defendant claimed to have been a bona fide purchaser for valuable consideration and in possession of the property and the alleged agreement of sale dated 15.07.1984 is not binding on him. The second defendant also desired the suit to be dismissed with costs. 6. On such pleadings, the trial Court framed the following issues for trial and determination of the suit. 1. Whether there is material alteration in the suit agreement of sale dated 15.07.1984 with respect to item No.2 of the plaint schedule? 2. Whether the time is the essence of contract? 3. Whether the plaintiff was always ready and willing to perform his part of contract? 4. Whether the second defendant is a bona fide purchaser for value without notice? 5. To what relief? 7. The trial Court had examined P.W.1 and 2 and D.Ws.1 to 4 during trial and marked Exs.A-1 to A-9 and B-1 to B-7. 8. The trial Court, while rendering the impugned judgment, firstly observed that the burden concerning the material alteration and whether the time is the essence of the contract is on the plaintiff and noted that during the cross-examination of the plaintiff as P.W.1, he stated that the agreement was for Acs.2.40 cents and it was by mistake that his counsel got issued notice only for the first item. He also claimed the rate agreed to be Rs.22,000/- per acre and not Rs.40,000/- per acre as mentioned in 9. Ex.A-1. He also claimed the rate agreed to be Rs.22,000/- per acre and not Rs.40,000/- per acre as mentioned in 9. Ex.A-1. The extent also was mentioned to be Acs.1.40 cents in Ex.A-1, but he did not pay balance consideration as first defendant did not come forward to register the documents. He claimed to be having cash in his bank account for payment of the balance consideration and he was also cross-examined much about the purchases made by him under Exs.B-2 to B-6. The trial Court also referred to the evidence of the attestor of Ex.A-1 agreement of sale as P.W.2, who stated that he acted as a mediator between the plaintiff and the first defendant in the transaction and he also attempted to suggest one Donthu Subbaramaiah to be lessee of the land. P.W.2 also admitted that the extent mentioned in Ex.A-1 is only Acs.1.40 cents relating to first item and not Acs.2.40 cents. The trial Court referring to the admission of the first defendant about the execution of Ex.A-1 felt that the first defendant failed to say when the suit agreement was materially altered and there was no evidence with him to show that the suit agreement was materially altered. The confinement of the suit to first item of plaint schedule by the plaintiff was also referred to by the trial Court and it felt that there was no necessity for the first defendant to sell the property to the second defendant for Rs.14,700/- when under the suit agreement, the plaintiff agreed to purchase the first and second items of plaint schedule at Rs.40,000/-per acre. The improbability of the claim of the first defendant about the variation in rates when the plaintiff agreed to the sale for Rs.40,000/- per acre was relied on by the trial Court to believe the version of the plaintiff that he agreed to purchase the land at Rs.22,000/- per acre making Rs.56,000/-the consideration for entire Acs.2.40 cents. The fact that both the defendants engaged the same counsel was also taken adverse note of by the trial Court and in the absence of any evidence for the first defendant and because the second defendant was not a party to Ex.A-1 having any personal involvement, the second defendant was considered to be not competent to plead about any material alternation. The trial Court also noted the execution of sale deed on 11.02.1985 itself by the first defendant in favour of the second defendant and considered the time to be not essence of the contract as the first defendant had taken three months time to give reply to the first notice issued by the plaintiff. The failure of the second defendant to have the first defendant examined as a witness in the Court was also not appreciated and non-examination of Donthu Subbaramaiah to speak that there was no lease was also taken adverse note of. The trial Court was, therefore, of the opinion that in the absence of any evidence for the first defendant, there could not have been considered any material alteration in execution of Ex.A-1 in relation to first and second items and accordingly answered issues 1 and 2 in favour of the plaintiff. While referring to the exchange of notices and the amount standing in the name of the plaintiff with bank to presume that the plaintiff has the capacity to pay the balance consideration, from his cross-examination and Exs.B-2 to B6, the trial Court presumed that the plaintiff had capacity to pay the sale consideration. Readiness and willingness on the part of the plaintiff to perform his part of the contract was hence accepted and the second defendant was considered not a bona fide purchaser for value without notice of Ex.A-1 as the second defendant did not examine the first defendant in support of his contentions and as there was no document to show that the second defendant spent Rs.45 lakhs for the construction of the factory. The absence of any separate notice from second defendant to the plaintiff and the absence of any efforts by him to verify about 10. Ex.A-1 were considered to be adverse circumstances and D.W.1 was considered to have the knowledge by the date of his sale transaction about Ex.A-1 agreement. Inadequacy of consideration was also considered as an adverse factor and the construction of the factory by the second defendant in spite of pendency of petition for interim injunction was also considered to indicate mala fides on the part of the second defendant. The evidence of D.Ws.3 and 4 was considered not helpful to the second defendant as the trial Court found their evidence to be not on the relevant aspects. The evidence of D.Ws.3 and 4 was considered not helpful to the second defendant as the trial Court found their evidence to be not on the relevant aspects. Hence, it concluded that the second defendant is not a bona fide purchaser and consequently the suit was decreed with costs by the trial Court asking the first defendant to execute a sale deed in favour of the plaintiff and directing the plaintiff to deposit sale consideration by 10.03.1993. 11. In this appeal against the said judgment and decree, the second defendant pleaded that the trial Court ought to have concluded that there was material alteration in Ex.A-1 in inserting second item of plaint schedule before the suit on which ground alone the suit ought to have been dismissed. Non-examination of the first defendant had no impact on the circumstances disclosed by the recitals in the documents filed by the plaintiff himself and time should have been considered to be the essence of the contract. The deposit of sale consideration not having been made by the plaintiff, the suit ought to have been dismissed and the suit agreement of sale could not have been considered to be in existence after its cancellation by registered notice. When the plaintiff was never ready and willing to pay the balance consideration, specific performance could not have been granted and the plaintiff could have no money after purchases made under Exs.B-2 to B-6. The factory manufacturing life saving drugs was constructed by the second defendant as a bona fide purchaser for value and the plaintiff never reacted during such a long time against such construction. The trial Court granted the decree even in respect of the second item in spite of the plaintiff’s unsatisfactory stand in respect of that item and the first defendant could not have conveyed any title over the second item being not the owner of the same. The second defendant had spent Rs.40 lakhs for construction of the factory and the trial Court could have considered the circumstances to deny the equitable relief of specific performance to the plaintiff. 12. Heard Sri A.Hanumantha Reddy, learned counsel for the appellant/second defendant and Sri K.Muralidhar Reddy, learned counsel for the first respondent/plaintiff. None entered appearance for the second respondent/first defendant. 13. The points that arise for consideration in this appeal suit are:- 1. 12. Heard Sri A.Hanumantha Reddy, learned counsel for the appellant/second defendant and Sri K.Muralidhar Reddy, learned counsel for the first respondent/plaintiff. None entered appearance for the second respondent/first defendant. 13. The points that arise for consideration in this appeal suit are:- 1. Whether the suit agreement of sale dated 15.07.1984 had been materially altered and became unenforceable? 2. Whether the plaintiff is entitled to specific performance of the said contract against both the defendants? 3. To what relief? Point No.1: Ex.A-1 is the suit agreement of sale dated 15.07.1984. It is specifically recited that the agreement was for sale of Acs.1.40 cents of land at Rs.40,000/-per acre as arranged between the parties, towards which an advance of Rs.1,000/-was paid. Further recitals were about the payment of balance consideration within three months and registration of a sale deed by the first defendant in favour of the plaintiff and the said recitals including the consequences of default by the first defendant were very clear and unambiguous that the subject matter of the agreement was only Acs.1.40 cents agreed to be sold at Rs.40,000/- per acre. It was after the recital about the property being not the subject of any earlier transaction that the reference to second item of plaint schedule suddenly appeared to have been made in the agreement. The property schedule given in Ex.A-1 was also specifically confined to Ac.1.40 cents and had absolutely no reference to there being any other property which was the subject of the agreement of sale. The recitals about the second item of plaint schedule stated about the said land of Acs.1.40 cents belonging to Shaik Hussain Sheriff which was under the enjoyment of the first defendant since about ten years towards part performance. The recitals did not refer to the non-existence of any written agreement of sale between the first defendant and Hussain Sheriff and the very mention that the price of the said Ac.1.00 also had been included under the agreement does not appear to be in tune with the ordinary and natural course of execution of such document. The recitals did not refer to the non-existence of any written agreement of sale between the first defendant and Hussain Sheriff and the very mention that the price of the said Ac.1.00 also had been included under the agreement does not appear to be in tune with the ordinary and natural course of execution of such document. The alleged undertaking by the first defendant to get the entire land registered by making Shaik Hssain Sheriff as an attestor to such alienation does not fit in either with the property schedule given in the agreement or with the price agreed at Rs.40,000/-per acre and/or the price of Rs.56,000/- being strictly in consonance with such agreed price concerning Acs.1.40 cents only. 14. Even to the naked eye, the references to the second item of plaint schedule in Ex.A-1 in Ex.A-9 portion of the agreement clearly appear to be in a different ink than the remaining contents of Ex.A-1. Ex.A-9 clearly appears even to the naked eye to have been adjusted in the place between the recitals in the agreement and the property schedule, and the very manner in which these lines are inserted in a congested fashion also is apparently visible. These factors evident on a straight perusal of the document are not circumstances which could have been ignored by the trial Court. 15. When Ex.A-2 notice was issued on 11.10.1984 on the instructions of the plaintiff by his Advocate, the entire contents of the notice were clearly in respect of an agreement of sale for Acs.1.40 cents at Rs.40,000/- per acre towards which Rs.1,000/- was paid in advance and Rs.55,000/- had to be paid as balance. There was no wispher of any other property being the subject of the agreement of sale apart from the items constituting Acs.1.40 cents agreed to be sold. 16. The reply by the first defendant Ex.A-3 is also in respect of the said Acs.1.40 cents only while indicating the readiness and willingness of the first defendant to perform his part of the contract. In Ex.A-3 notice dated 22.01.1985, the first defendant referred to the notice dated 11.12.1984 served on the counsel for the plaintiff on 19.12.1984, in spite of which the balance consideration was not paid and the sale deed was not obtained in spite of demanding the plaintiff to perform his part of contract. In Ex.A-3 notice dated 22.01.1985, the first defendant referred to the notice dated 11.12.1984 served on the counsel for the plaintiff on 19.12.1984, in spite of which the balance consideration was not paid and the sale deed was not obtained in spite of demanding the plaintiff to perform his part of contract. In Ex.A-3, the first defendant clearly gave the schedule of property as Acs.1.40 cents. 17. In Ex.A-4 in reply to Ex.A-3, the plaintiff was controverting the claims of the first defendant only with reference to the alleged lease of Acs.1.40 cents to one Donthu Subbaramaiah, who was claimed to be in possession and from whom consent for delivery of property should be obtained by the first defendant to enable the plaintiff to perform his part of contract. Even in Ex.A-4, there was no wishper about the second item of the plaint schedule. 18. It was in response to Ex.A-4 that the first defendant gave Ex.A-5 notice which was again concerning the controversy about sale of Acs.1.40 cents only and the first defendant, denying any lease in favour of Donthu Subbaramaiah who is no other than the brother in law of the first defendant, clearly informed the plaintiff with regard to his withdrawing from the agreement of sale and returning the earnest money deposit amount of Rs.1,000/- through a demand draft. 19. It was in Ex.A-6 in response to Ex.A-5 that the plaintiff referred for the first time to the first defendant making him believe to be the owner of Acs.2.40 cents and to have deceived the plaintiff. Ex.A-6 claims that Acs.1.40 cents would be useless without the sale of other Ac.1.00 and claiming the sale consideration to be representing the entire value of an extent of Acs.2.40 cents, Ex.A-6 also does not state at what rate per acre the parties agreed to enter into the transaction. While insisting on obtaining consent of the brother in law of the first defendant whether he is a tenant or not, Ex.A-6 does not refer to any representation by the first defendant about being in possession and enjoyment of the said Ac.1.00 in part performance of any contract or the first defendant promising to get the owner of the said Ac.1.00 as an attestor to the sale deed to be executed in respect of that Ac.1.00. 20. 20. Coming to the oral evidence, the plaintiff as P.W.1 tried to claim that the first defendant told him when demanded for executing a sale deed that he will so execute in respect of first item and will execute a sale deed in respect of second item after evicting the second defendant from possession. Apart from the evidence of P.W.1 being self-serving and interested, he admitted that the schedule of Ex.A-1 showed the extent of land only as Acs.1.40 cents. He also admitted that Ex.A-2 relates only to Ac.1.40 cents i.e., first item of plaint schedule. His attempt to claim the same to be the mistake of the Advocate is clearly opposed to the contents of the documents referred to above nor does his claim in Ex.A-6 concerning second item run consistent with the claim of any such mistake in Ex.A-2. If the plaintiff told his Advocate before the original of Ex.A-2 was issued that it was a mistake and that their claim should be in respect of Acs.2.40 cents, there could have been no reason for the Advocate not to correct the notice. P.W.1 conveniently claimed that he does not know whether his Advocate did not correct the extent in the notice Ex.A-2. The plaintiff also agreed that the agreed rate was specified as Rs.40,000/- per acre in Ex.A-1 and that the body of Ex.A-1 mentioned the extent to be sold is Acs.1.40 cents. Ex.A-2 also specifying the rate to be Rs.40,000/- per acre was admitted which tallies with the value of Ac.1.40 cents being Rs.56,000/-. The plaintiff also admitted receipt of Ex.A-3 notice only in respect of Acs.1.40 cents and though he tried to deny that, it was for the first time in Ex.A-6, he referred to the second item of plaint schedule. The denial is untenable as is evident from the contents of the documents referred to above. 21. The only other oral evidence produced by the plaintiff is that of the attestor of Ex.A-1 as P.W.2 and P.W.2 was speaking about the lease while admitting to have never seen the lease deed. The denial is untenable as is evident from the contents of the documents referred to above. 21. The only other oral evidence produced by the plaintiff is that of the attestor of Ex.A-1 as P.W.2 and P.W.2 was speaking about the lease while admitting to have never seen the lease deed. If he had acted as a mediator between the plaintiff and the first defendant in respect of purchase of the plaint schedule land, he did not explain as to why they did not enquire Donthu Subbaramaiah, the brother in law of the first defendant, the alleged lessee of the second item of plaint schedule or both the items. P.W.2 claiming about the first defendant agreeing to evict his brother in law and deliver vacant possession was not corroborated by the contents of Ex.A-1 and his evidence no way explains the recitals in 22. Ex.A-1 clearly not being consistent when the body and the property schedule clearly appear to be confined only to Acs.1.40 cents sold at Rs.56,000/- and Ex.A-9 portion of Ex.A-1 not appearing to have been written in Ex.A-1 at the time of its original execution. 23. While, it is true that the first defendant himself did not enter the witness box on his own or at the instance of the second defendant, the evidence for the plaintiff being what it is and the burden of proving his entitlement to specific performance being on him, any weakness in the evidence of the defendants could not have been taken as probablising the claims of the plaintiff. The evidence of the second defendant as D.W.1 spoke about the bona fides in the purchase from the first defendant by the second defendant and even the second defendant was told according to D.W.1 about Shaik Hussain Sheriff being the owner of second item of plaint schedule and the purchase of the said item being from both the first defendant and Shaik Hussain Sheriff. Though the second defendant came to know about the earlier agreement Ex.A-1 on the date of registration of the property in favour of the second defendant which was not disclosed earlier to them by the first defendant, the same will not in any manner strengthen the case of the plaintiff in so far as the issue of material alteration is concerned. The evidence of D.Ws.2 to 4 also throws no light on this aspect. The evidence of D.Ws.2 to 4 also throws no light on this aspect. The evidence of D.Ws.1 to 4 about transaction between the first defendant and the second defendant may not have any determinate effect on the sustainability or otherwise of the claim of the plaintiff against the first defendant for specific performance. 24. In Loonkaran Sethia vs. Ivan E.John ( AIR 1977 SC 336 ), the apex Court was dealing with the effect of the material alteration on a document and stated the material alteration to be one which varies the rights, liabilities or legal position of the parties as ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally unascertained and as such void or which may otherwise prejudice the party bound by the deed as originally executed. The Apex Court further held that the effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. In the case before Their Lordships, as the alterations in question substantially varied the rights and liabilities and the legal position of the parties and as the material alterations were made without the consent of the parties bound, they were held to be having the effect of cancelling the deed. 25. Applying the tests laid down by the Apex Court in respect of the effect of material alteration without the consent of the party liable, to the facts of the present case, it is evident that the effect of interpolation of Ex.A-9 in Ex.A-1 agreement is to make the agreement of sale under Ex.A-1 deemed to be cancelled. 26. The trial Court in its consideration straight away accepted the evidence of P.Ws.1 and 2 as proving the entitlement of the plaintiff to specific performance primarily due to the absence of any evidence by the first defendant on the question of material alteration. 26. The trial Court in its consideration straight away accepted the evidence of P.Ws.1 and 2 as proving the entitlement of the plaintiff to specific performance primarily due to the absence of any evidence by the first defendant on the question of material alteration. If there was a material alteration by interpolation of Ex.A-9, the mere fact that the plaintiff confined the suit claim only to first item of plaint schedule would not have made any difference to the legal effect of such material alteration and even assuming that there was no evidence for the defendants due to the absence of the first defendant in the witness box, the very documents filed by the plaintiff and the very oral evidence of P.Ws.1 and 2 not explaining the improbability of second item of plaint schedule being part of the agreement originally should have shown that the balance of probabilities arising out of the evidence of record is not in favour of presumption of Ex.A9 to be part and parcel of Ex.A-1 agreement since inception. The factual conclusions of the trial Court cannot, therefore, be sustained. 27. It is noticed that the learned counsel for the plaintiff laid emphasis on the absence of any advantage which the plaintiff would have by making any material alteration in respect of the second item over which the first defendant had no title, but the motives of the plaintiff in making the material alteration or any advantage which he would have gained or not gained may not be relevant considerations in considering whether Ex.A-9 was a subsequent interpolation in Ex.A-1 agreement without the knowledge and consent of the first defendant or not. Ex.A-9, if it were to be considered as material alteration, undoubtedly is such an alteration which varied the rights, liabilities and legal position of the parties and the legal effect of the agreement and consequently made Ex.A-1 not enforceable on the principles laid down by the Apex Court. This point is answered accordingly. Point No.2: 28. In view of the conclusions on point No.1, it becomes immaterial whether time was the essence of the contract and whether the plaintiff was ready and willing to perform his part of the contract and whether the second defendant was a bona fide purchaser for value without notice. This point is answered accordingly. Point No.2: 28. In view of the conclusions on point No.1, it becomes immaterial whether time was the essence of the contract and whether the plaintiff was ready and willing to perform his part of the contract and whether the second defendant was a bona fide purchaser for value without notice. Irrespective of all other considerations, the introduction of Ex.A-9 in Ex.A-1 by the plaintiff without the knowledge and consent of the first defendant, made Ex.A-1 unenforceable and the equitable relief of specific performance could not have been granted in favour of the plaintiff. As the success of the plaintiff before the trial Court was solely on the weakness of the defendants’ case and not on the strength of the evidence for the plaintiff, the plaintiff has to fail and the impugned judgment and decree are to be reversed. Point No.3: 29. In view of the findings on point Nos.1 and 2, the appeal should succeed. Under the circumstances of the case, where the first defendant himself did not enter the witness box, the second defendant had no knowledge of Ex.A-1 and the execution of Ex.A-1 is admitted, the parties should be directed to bear their own costs. 30. In the result, the judgment and decree in O.S.No.38 of 1985 on the file of the Subordinate Judge’s Court, Nellore, dated 10.02.1993 are set aside and O.S.No.38 of 1985 on the file of the Subordinate Judge’s Court, Nellore, is dismissed without costs. The appeal suit is allowed accordingly without costs.