JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. The appeal is filed against the judgment and decree dated 14-6-2004 passed by the learned I Additional District Judge, Visakhapatnam, in O.S. No. 27 of 1998 to the extent of awarding costs in favour of the defendants. The suit is filed for the relief of specific performance of an oral agreement of sale in respect of suit schedule vacant site and for permanent injunction restraining the defendants 1 and 2 from interfering with the plaintiff’s permissive possession of the suit schedule site and for costs. 2. The case of the plaintiff as narrated in the plaint, in brief, is as follows: (a) It is pleaded that the plaintiff is a builder of repute in and around Visakhapatnam and he is doing apartments constructions business. The defendants 1 and 2 are brothers and owners of the plaint schedule vacant site having succeeded to the same on the death of their father. The 2nd defendant is a permanent resident of Raipur. The 1st defendant, who is the elder brother, is representing the family. He was the head of the family, held deliberations with the plaintiff for the sale of the schedule property, in the presence of a mediator by name N. Appala Naidu. (b) It is further pleaded that the defendants offered to sell the suit schedule property for a total consideration of Rs.8,38,800/- i.e. at the rate of Rs.1,800/- per square yard. The plaintiff agreed for the same. In pursuance of the discussions, the plaintiff made a payment of Rs.10,000/- as advance on 11-10-1997 at 12.00 Noon for auspicious reasons and the 1st defendant having received the same, executed a receipt dated 11-10-1997 mentioning inter alia the location and extent of the site and also agreed rate per square yard. The said receipt was attested by the witness. At that time, the 1st defendant made the plaintiff to believe that he as an elder brother would convince his younger brother, the 2nd defendant, to execute a sale deed in favour of the plaintiff, after receiving the balance of sale consideration. The said receipt was attested by the witness. At that time, the 1st defendant made the plaintiff to believe that he as an elder brother would convince his younger brother, the 2nd defendant, to execute a sale deed in favour of the plaintiff, after receiving the balance of sale consideration. The 1st defendant also promised to obtain encumbrance certificate, legal heir certificate and clearance certificate from Urban Land Ceiling Authorities with related link documents by the time of visit of the 2nd defendant to Visakhapatnam, so as to enable them to execute a sale deed in favour of the plaintiff or his nominee by January, 1998. (c) It is further pleaded that subsequently during December, 1997 when there were encroachments into the suit schedule site, the 1st defendant intimated the same to the plaintiff and requested to get the encroachers evicted, cleaned, level and demarcate the property and thus had given permissive possession of the suit schedule property to the plaintiff. The plaintiff got cleaned and leveled the suit schedule property and erected cement poles by expending Rs.8,150/- under a receipt dated 07-01-1998 issued by the contractor who did the work. (d) It is further pleaded that the plaintiff having secured the balance of sale consideration, called upon the defendants during pongal season to intimate their convenient date for executing a registered sale deed and at that time, expressed readiness and willingness to perform his part of the contract. At that time, the defendants turned adamant and hostile and began avoiding the plaintiff. The plaintiff got issued a registered notice dated 27-01-1998 to the 1st defendant. The defendants did not issue any reply. Then the plaintiff got made a paper publication in Eenadu Telugu Daily dated 28-01-1998. On 25-02-1998, the defendants made hectic efforts to dispossess the plaintiff from the suit schedule site. Hence, the suit. 3. Brief averments in the written statement filed by the 1st defendant are as follows: (a) It is contended that the 1st defendant never approached the plaintiff. There was never any mediation by any person, much less Appala Naidu. The plaint schedule property is the self acquired property of late Narasimha Murthy, father of the defendants. He died intestate leaving behind him three sons, including defendants 1 and 2 and two daughters. All the five children of the said Narasimha Murthy are having equal rights in the schedule property. The plaint schedule property is the self acquired property of late Narasimha Murthy, father of the defendants. He died intestate leaving behind him three sons, including defendants 1 and 2 and two daughters. All the five children of the said Narasimha Murthy are having equal rights in the schedule property. They are living separately and are not members of a joint family. (b) It is further contended that the 1st defendant has no right to dispose of the property on behalf of the other co-owners. The 1st defendant never approached the plaintiff nor did he have any discussions with the plaintiff representing the other co-owners. The plaintiff approached the 1st defendant and expressed his desire to purchase the property. The 1st defendant clearly informed that he is not the sole owner and that he has two brothers and sisters who are also having equal share in the suit schedule property. The plaintiff convinced the 1st defendant and paid an amount of Rs.10,000/- as a token payment, subject to an understanding and further it was agreed that in case the other co-owners do not agree to sell their shares, the token advance will be returned to the plaintiff without interest. (c) It is further contended that the 1st defendant never expressed that he will convince the other family members to sell their shares. The plaintiff did not approach the other co-owners to convince them. The other co-owners had no knowledge of the discussions between the 1st defendant and the plaintiff. The plaintiff failed to perform his part of contract in approaching and convincing other family members. The contract, if any, between the 1st defendant and the plaintiff is unenforceable and not binding on the 1st defendant and other co-owners. (d) It is further contended that in view of the facts mentioned, the 1st defendant deposited an amount of Rs.10,000/- which was received from the plaintiff into court by challan bearing No. 988, dated 03-02-1999. It is impossible to perform the contract. There is no cause of action. The suit is not maintainable. Hence, the suit may be dismissed with costs. 4. Brief averments in the written statement filed by the 2nd defendant are as follows: (a) He denied all the plaint allegations. The suit schedule property belonged to late K. Narasimha Murthy, father of the defendants and three others. There is no cause of action. The suit is not maintainable. Hence, the suit may be dismissed with costs. 4. Brief averments in the written statement filed by the 2nd defendant are as follows: (a) He denied all the plaint allegations. The suit schedule property belonged to late K. Narasimha Murthy, father of the defendants and three others. After the intestate death of the said Narasimha Murthy on 19-8-1991, all the said three brothers and two sisters succeeded to the property. He denied the allegations about discussion for sale of suit schedule property between the plaintiff and the 1st defendant in the presence of a mediator K. Appala Naidu. The 2nd defendant is not aware of the representation, if any, of the 1st defendant. He denied the fixation of price and the payment of advance of Rs.10,000/- on 11-10-1997 at 12.00 Noon as mentioned in the plaint. The 1st defendant never intimated the 2nd defendant about the sale of joint property. Any such oral agreement of sale does not bind the 2nd defendant and other co-owners. The alleged receipt dated 11-10-1997 is not binding on the 2nd defendant. The 2nd defendant never made any hectic efforts to alienate the property and never brought third parties to the suit site and never tried to forcibly dispossess the plaintiff. The plaintiff is never in possession of the suit schedule site. The suit is speculative one and is not maintainable. There is no cause of action. The plaintiff is not entitled to claim any reliefs. The suit is frivolous and vexatious one. The suit is bad for non-joinder of the other co-owners. Hence, the suit may be dismissed with exemplary costs. 5. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the receipt dated 11-10-1997 is true, valid and binding on the defendants? (2) Whether there is enforceable contract in between the plaintiff and defendants? (3) Whether the receipt dated 07-01-1998 is true, valid and binding on the defendants? (4) Whether the plaintiff is entitled for specific performance of contract as prayed for? (5) Whether the plaintiff is entitled for an injunction as prayed for? (6) Whether the suit is bad for non-joinder of necessary parties? (7) Whether the plaint schedule is incorrect as pleaded in the written statement? (8) Whether the suit is not maintainable under law? (4) Whether the plaintiff is entitled for specific performance of contract as prayed for? (5) Whether the plaintiff is entitled for an injunction as prayed for? (6) Whether the suit is bad for non-joinder of necessary parties? (7) Whether the plaint schedule is incorrect as pleaded in the written statement? (8) Whether the suit is not maintainable under law? (9) Whether the 2nd defendant is entitled for exemplary costs as pleaded in the written statement? (10) To what relief? 6. During the course of trial, on behalf of the plaintiff, PWs. 1 to 3 are examined and Exs.A-1 to A-10 are marked. On behalf of the defendants, DWs. 1 and 2 are examined and no documentary evidence is adduced on their behalf. 7. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit with costs, holding that the plaintiff is not entitled to a direction to the defendants 1 and 2 to execute a sale deed in favour of the plaintiff in respect of the suit schedule property after receiving balance of sale consideration and further that the plaintiff is not entitled to specific performance of oral agreement of sale and also permanent injunction as prayed for. 8. Heard Sri K. Guna Sekhar, learned counsel for the appellant/plaintiff, and Ms. V. Aasritha, learned counsel, representing on behalf of Sri P. Sri Raghu Ram, learned Senior Counsel for the 1st respondent/1st defendant. 9. The learned counsel for the appellant/plaintiff would contend that the judgment and decree passed by the learned I Additional District Judge, Visakhapatnam, to the extent of awarding of costs in favour of the 1st respondent/1st defendant is contrary to law. He would further contend that the 1st respondent having received Rs.10,000/- towards advance agreeing to sell the suit schedule property, he is not entitled to recover any costs from the appellant. He would further contend that the judgment and decree passed by the learned trial Judge in awarding suit costs to the defendants is contrary to law. The learned counsel for the appellant fairly conceded during the course of arguments that the present appeal is concerned with regard to awarding costs to the defendants from the plaintiff and there is no need to decide other aspects which are decided by the Court below. 10. The learned counsel for the appellant fairly conceded during the course of arguments that the present appeal is concerned with regard to awarding costs to the defendants from the plaintiff and there is no need to decide other aspects which are decided by the Court below. 10. Now, the points for determination are: (1) Whether the trial Court is justified in awarding suit costs to the respondents/ defendants? (2) To what extent? 11. Point No. 1: Whether the trial Court is justified in awarding suit costs to the respondents/defendants? The undisputed facts are that the appellant/plaintiff is a builder and the suit schedule property is a vacant site property originally belongs to late K. Narasimha Murthy and he died intestate on 19-8-1991 leaving behind him K.K. Malviya (eldest son), defendants 1 and 2 and two daughters by name B. Kasturi Bai and B. Vijaya Lakshmi. It is also an admitted fact by both the parties that the father of defendants by name K. Narasimha Murthy died intestate and after his death, the suit schedule property devolved upon the three brothers and two sisters, who are also co-owners of the suit schedule property. The plaintiff is claiming the relief of specific performance of agreement of sale. Admittedly, there is no written agreement in between the plaintiff and the defendants. It is an admitted fact by both the parties that there was an oral agreement in between the plaintiff and the 1st defendant. The legal position in this regard is no more res integra. The law is well settled that the grant of decree of specific performance of agreement of sale is not an automatic and it is a discretionary relief, the same is required to be exercised judiciously, sound and reasonably. In a suit for specific performance of agreement of sale, the Court has to see the totality of the circumstances, conduct of the parties and respective interests under the contract while granting/refusing such relief. 12. As stated supra, the agreement of sale is an oral agreement of sale. There is no written agreement in between the plaintiff and the defendants. Moreover, the recitals of Ex.A-1 receipt dated 11-10-1997 go to show about the intention of purchase of the suit schedule property site by the plaintiff from the 1st defendant and he received advance amount of Rs.10,000/- from the plaintiff. The same is not at all disputed by the 1st respondent. Moreover, the recitals of Ex.A-1 receipt dated 11-10-1997 go to show about the intention of purchase of the suit schedule property site by the plaintiff from the 1st defendant and he received advance amount of Rs.10,000/- from the plaintiff. The same is not at all disputed by the 1st respondent. Ex.A-1 receipt is not at all disputed by the 1st respondent/1st defendant. The receipt of advance amount of Rs.10,000/- under Ex.A-1 is not at all disputed by the 1st defendant, who is a signatory in Ex.A-1. Admittedly, Ex.A-1 does not bear the signatures of 2nd respondent/2nd defendant. The particulars of area of extent and rate per square yard are clearly mentioned in Ex.A-1. As stated supra, the said receipt is not at all disputed by the 1st defendant. Furthermore, as stated supra, the 1st defendant is not having absolute rights in the plaint schedule property. The contention of the 1st defendant is that the suit schedule property originally belongs to his father late K. Narasimha Murthy and he died intestate on 19-8-1991 by leaving behind the three sons and two daughters and the defendants 1 and 2 are the 2nd and 3rd sons of the deceased K. Narasimha Murthy. In such a case, the 1st defendant ought to have refused to receive the advance amount of Rs.10,000/- from the plaintiff. Admittedly, as per the case of 1st defendant, i.e. pleadings in the written statement of 1st defendant, he is not absolute owner of the plaint schedule property and he is a co-owner of the plaint schedule property. Ex.A-2 goes to show that the appellant/plaintiff incurred an expenditure of Rs.8,150/- towards jungle clearance, site leveling and erection of RCC poles. The same is proved by the plaintiff through P.W.3. Exs.A-7 to A-10 photographs also support the same. Ex.A-3 goes to show that on 27-01-1998, the plaintiff issued a registered legal notice to the 1st defendant and copy of the said legal notice is also marked to the 2nd defendant, who is the 2nd respondent in the appeal proceedings. Exs.A-4 and A-5 go to show that both the defendants 1 and 2 received the said registered notice. Furthermore, Ex.A-6 goes to show that on 28-01-1998, a publication was given by the plaintiff in Eenadu Telugu Daily in respect of the alleged oral agreement transaction. 13. Exs.A-4 and A-5 go to show that both the defendants 1 and 2 received the said registered notice. Furthermore, Ex.A-6 goes to show that on 28-01-1998, a publication was given by the plaintiff in Eenadu Telugu Daily in respect of the alleged oral agreement transaction. 13. As per the case of the appellant/plaintiff, the total admitted sale consideration is Rs.8,38,800/- and he paid only paltry amount of Rs.10,000/- he has to pay the remaining balance amount of Rs.8,28,800/-. In a suit for specific performance of agreement of sale, law is very well clear that the plaintiff must prove his readiness and willingness to perform his part of the contract all through, right from the date of contract till the date of filing of the suit. Admittedly, to show his bona fides, the appellant/plaintiff did not deposit the alleged remaining balance sale consideration of Rs.8,28,800/- which is a huge amount in the Court below in those days in the year 1997 way back at about 27 years ago. To show his bona fides, the appellant failed to deposit the remaining balance sale consideration of Rs.8,28,800/-. As stated supra, a paltry amount of Rs.10,000/- is only paid to the 1st defendant. Though the suit is dismissed by the learned trial Judge, the plaintiff has not sought any relief of specific performance of agreement of sale in the present appeal proceedings. 14. In the case on hand, having known the fact that the 1st respondent/ 1st defendant is not the absolute owner of the plaint schedule property, the appellant entered into oral agreement of sale with the 1st defendant and paid advance amount, the 1st defendant having knowledge of the same though he is not an absolute owner of the plaint schedule property, received the advance amount of Rs.10,000/- on 11-10-1997 without any protest from the appellant/plaintiff. Therefore, there are laches on the part of both sides. It was pleaded by the 1st defendant in the written statement that he deposited an amount of Rs.10,000/- which was received from the plaintiff as advance sale consideration on 03-02-1999 by way of a challan before the Court below, in view of impossible to perform his part of the contract. 15. As stated supra, there are so many laches on the part of the plaintiff and 1st defendant. Admittedly, the alleged original agreement of sale is in between the plaintiff and 1st defendant. 15. As stated supra, there are so many laches on the part of the plaintiff and 1st defendant. Admittedly, the alleged original agreement of sale is in between the plaintiff and 1st defendant. The suit is also filed against the 2nd defendant. The 2nd defendant received the legal notice and kept quiet. To deny the allegations in the legal notice Ex.A-3 issued by the plaintiff, no reply was given by the 2nd defendant. If at all defendants 1 and 2 are disputing the contents in Ex.A-3 legal notice, they ought to have given reply by stating that the contents in Ex.A-3 legal notice are false. Admittedly, no reply notice was given by the 2nd defendant to the plaintiff by stating that he is no way connected with the suit transaction. It is a fact that both the defendants are not illiterates and they are high officials and they are also highly educated. It is an admitted fact that the plaintiff incurred an expenditure of Rs.8,150/- towards jungle clearance, site leveling and erection of RCC poles and he also engaged an advocate to issue Ex.A-3 legal notice and also gave paper publication in Eenadu Telugu Daily by informing the oral agreement of sale to general public. It is a fact that the appellant/plaintiff paid court fee of Rs.10,937/- in the year 1998 way back about 26 years ago, in those days, it is a very huge amount. As noticed supra, the plaintiff incurred more expenditure prior to institution of the suit against the defendants. No doubt, the defendants also engaged an advocate to defend their case in the suit proceedings before the trial Court. As noticed supra, there are laches on the part of both the plaintiff and defendants. Therefore, it cannot be said that the case on hand is false and frivolous suit. 16. The learned counsel for the 1st respondent placed reliance on a judgment of the Apex Court in Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1 . In that decision, the Apex Court held as follows: “48. The provision for costs is intended to achieve the following goals: (a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. The provision for costs is intended to achieve the following goals: (a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. (b) Costs should ensure that the provisions of the Code, the Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. (c) Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs. (d) The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases. In many other jurisdictions, in view of the existence of appropriate and adequate provisions for costs, the litigants are persuaded to settle nearly 90% of the civil suits before they come up to trial. (e) The provisions relating to costs should not however obstruct access to courts and justice. Under no circumstances the costs should be a deterrent, to a citizen with a genuine or bona fide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the courts. At present these goals are sought to be achieved mainly by Sections 35, 35-A and 35-B read with the relevant civil rules of practice relating to taxing of costs.” 17. In the case of Jayakantham v. Abaykumar, (2017) 5 SCC 178 the Apex Court held as follows: “11. In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.” 18. In the case on hand, there are so many laches on the part of the respondents/defendants. Having knowledge that he is not absolute owner of the plaint schedule property, the 1st respondent/1st defendant received an amount of Rs.10,000/- on 11-10-1997. These circumstances make it inequitable to enforce specific performance.” 18. In the case on hand, there are so many laches on the part of the respondents/defendants. Having knowledge that he is not absolute owner of the plaint schedule property, the 1st respondent/1st defendant received an amount of Rs.10,000/- on 11-10-1997. After filing of the suit and before filing of the written statement, he deposited the said amount before the Court below in the year 1999, it is not at all disputed the same by the plaintiff. Therefore, the conduct of the parties has to take place a vital role. As stated supra, there are so many laches on the part of both the parties in the suit, those laches cannot be ruled out. The laches on the part of the respondents/defendants cannot be thrown out. As noticed supra, the conduct of the parties has to be taken into consideration. The 1st respondent/ 1st defendant being a highly educated person, though he is not having absolute rights in the plaint schedule property, received an advance amount of Rs.10,000/- in the year 1997 and again he deposited the same in the year 1999 before the Court below during the pendency of the suit proceedings. As noticed supra, the 2nd respondent/2nd defendant being a highly educated person, having received the notice and kept quiet and he did not choose to give any reply to the plaintiff to deny the contents in Ex.A-3 legal notice. In such a case, it is not proper for the Court below to award suit costs to the respondents/defendants. 19. It is an admitted fact that the appellant/plaintiff has not claimed refund of advance amount of Rs.10,000/-. The law is well settled that since the plaintiff has not sought alternative relief of refund of advance amount, he is not entitled to the alternative relief of refund of advance amount. Therefore, the advance amount of Rs.10,000/- paid by the plaintiff is forfeited. No doubt, the 2nd defendant has not received any advance amount but he faced the litigation before the Court below having no fault of him, except non-issuance of reply notice to the plaintiff. Therefore, both the defendants are entitled to receive the said amount of Rs.10,000/- which was deposited by the 1st defendant from the court below. There is no need to interfere with the finding of the trial Court in dismissing the suit by the trial Court. Therefore, both the defendants are entitled to receive the said amount of Rs.10,000/- which was deposited by the 1st defendant from the court below. There is no need to interfere with the finding of the trial Court in dismissing the suit by the trial Court. The present appeal is filed against the finding of awarding of suit costs by the trial Court to the defendants. As stated supra, since the defendants are not entitled to the suit costs, the appeal has to be allowed by setting aside the order of the trial Court in awarding suit costs to the defendants. 20. Point No. 2: To what extent? In the result, the appeal suit is allowed by setting aside the finding of the trial Court to award suit costs to the defendants. Pending applications, if any, shall stand closed. Each party do bear their own costs in the appeal.