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2024 DIGILAW 384 (AP)

Ginni Ramarao Reddy v. Poosapati Sreedevi

2024-03-21

VENUTHURUMALLI GOPALA KRISHNA RAO

body2024
JUDGMENT : Venuthurumalli Gopala Krishna Rao, J. The appeal is filed by the 1st defendant in O.S.No.75 of 1993 on the file of Principal Senior Civil Judge’s Court, Visakhapatnam. The 1st respondent is the plaintiff and the 2nd respondent is the 2nd defendant in the said suit. 2. The parties will hereinafter be referred to as arrayed before the trial Court. 3. The brief averments in the plaint are as follows: (a) It is pleaded that the 1st defendant is the husband of the 2nd defendant and he is the absolute owner of the plaint schedule property, having purchased the same from Visakhapatnam Urban Development Authority (VUDA) under a registered sale deed dated 12-8-1980. The 1st defendant agreed to sell the plaint schedule property to the plaintiff for a valuable consideration of Rs.4,14,000/- and executed a sale agreement after receiving advance amount of R.1,34,000/- on 18-7-1990. The 1st defendant received further advance of Rs.30,000/- from the plaintiff through a cheque dated 23-8-1990 but he did not endorse the payment on the agreement in spite of several requests made by the plaintiff. (b) It is further pleaded that under the agreement, the 1st defendant has to vacate and put the plaintiff in possession of the schedule property on or before 01-10-1990 and thereafter the plaintiff has to take sale deed from the 1st defendant. The 1st defendant though received Rs.1,64,000/- by 01-10-1990 failed to put the plaintiff in possession of the schedule property on 01-10-1990 as agreed, therefore, he is liable to pay interest at 12% on Rs.1,64,000/- from 01-10-1990 till he executes a registered sale deed and put the plaintiff in possession of the property. The plaintiff got issued a legal notice on 29-01-1991 to the 1st defendant expressing her ready and willingness to perform her part of the contract and demanded the 1st defendant to perform his part of contract, for which the 1st defendant gave reply notice admitting the execution of sale agreement and receipt of Rs.1,34,000/- but denied receipt of Rs.30,000/- and further informed that his wife filed O.S.No.39 of 1992 on the file of II Additional Sub Court, Visakhapatnam, for declaration of title over the schedule property. The defendants collusively filed the said suit to harass the plaintiff. The plaintiff is always ready and willing to perform her part of contract. Hence, the suit. 4. The defendants collusively filed the said suit to harass the plaintiff. The plaintiff is always ready and willing to perform her part of contract. Hence, the suit. 4. The 1st defendant filed a written statement admitting execution of the sale agreement in favour of the plaintiff and receipt of advance amount of Rs.1,34,000/- but denied receipt of Rs.30,000/- by way of cheque on 23-8-1990 and also denied that he has agreed to deliver possession of the house on or before 01-10-1990. It is contended by the 1st defendant that the plaintiff has no funds to fulfil her part of the contract, time is essence of the contract and since the plaintiff has not performed her part of contract, she is not entitled for specific performance of agreement of sale. 5. The 1st defendant also filed additional written statement contending that the pleadings made by the plaintiff are not in accordance with Forms 47 and 48 of the Appendix of Civil Procedure Code. He further pleaded that the plaintiff has no funds to perform her part of the contract either at the time of agreement or at the time of institution of the suit, as such, the suit is liable to be dismissed. 6. The 2nd defendant filed a written statement contending that she is absolute owner of the suit schedule property as such she filed O.S.No.39 of 1992 for declaration of her title with regard to the suit schedule property. She further pleaded that the 1st defendant and the plaintiff colluded together and entered into an agreement of sale, which is illegal, void and unenforceable, as such, the suit is liable to be dismissed. 7. Based on the above pleadings, the following issues are settled for trial by the trial Court: (1) Whether the 2nd defendant is the owneress of the suit schedule property and whether she is entitled to claim ownership to the suit schedule property in view of the provisions of Benami Transactions (Prohibition) Act, 1988 ? (2) Whether the suit agreement of sale dated 18-7-1990 between the plaintiff and the 1st defendant is not binding on the 2nd defendant ? (3) Whether Rs.30,000/- received by the 1st defendant from the plaintiff on 23-8-1990 is the part of the advance amount of Rs.1,34,000/- dated 18-7-1990 ? (4) Whether time is essence of the contract ? (2) Whether the suit agreement of sale dated 18-7-1990 between the plaintiff and the 1st defendant is not binding on the 2nd defendant ? (3) Whether Rs.30,000/- received by the 1st defendant from the plaintiff on 23-8-1990 is the part of the advance amount of Rs.1,34,000/- dated 18-7-1990 ? (4) Whether time is essence of the contract ? (5) Whether the plaintiff is always ready and willing to perform her part of contract ? (6) Whether the plaintiff is entitled for specific performance of suit agreement dated 18-7-1990 against the defendants ? (7) Whether the plaintiff is entitled to claim damages of Rs.34,000/- from the defendants for delay in performance of the contract ? (8) Whether the plaintiff is entitled for future damages at the rate of Rs.2,000/- per month from the date of suit till the date of delivery of the suit schedule premises to her ? (9) Whether the plaintiff is entitled for the alternative relief against the defendants by way of refund of advance of Rs.1,64,000/- with interest at 24% per annum on Rs.1,34,000/- from 18-7-1990 and on Rs.30,000/- from 23-8-1990 till the date of payment; for damages of Rs.2,00,000/- for breach of contract and for creation of charge under Section 55(6)(b) of Transfer of Property Act in respect of these amounts over the suit schedule property ? and (10) To what relief ? 8. The following additional issues are also settled for trial by the trial Court: (1) Whether the pleadings made by the plaintiff are not in accordance with Forms 47 and 48 of Appendix of CPC ? (2) Whether the plaintiff has no funds to perform her part of contract at any time ? (3) Whether the defendant is ready and willing to perform his part of contract ? and (4) To what relief ? 9. During the course of trial, on behalf of the plaintiff, the plaintiff examined herself as P.W.4, her husband as P.W.1 and she also examined two more witnesses as P.Ws.2 and 3 and marked Ex.A-1 to A-15. On behalf of the defendants, the 1st defendant was examined as D.W.1 and he also examined another witness as D.W.2 and no documentary evidence was adduced on their behalf. 10. On behalf of the defendants, the 1st defendant was examined as D.W.1 and he also examined another witness as D.W.2 and no documentary evidence was adduced on their behalf. 10. After completion of trial and hearing arguments of both sides, the trial Court decreed the suit with costs directing the defendants to register a sale deed in favour of the plaintiff in respect of the plaint schedule property as per the terms of the agreement of sale dated 18-7-1990 within three months after receipt of balance sale consideration of Rs.2,80,000/- from the plaintiff, failing which, the plaintiff is at liberty to get the sale deed executed through the court at the expenses of the defendants. The trial Court further directed the defendants to handover the vacant possession of the schedule property to the plaintiff failing which the plaintiff is at liberty for evicting the defendants and their men through court at his expenses to be recovered from the defendants. The trial Court also directed the defendants to pay damages at the rate of Rs.800/- per month from 01-10-1990 till the date of delivery of the plaint schedule property to the plaintiff, subject to payment of court fee by the plaintiff. 11. Aggrieved against the said judgment and decree, the 1st defendant filed the present appeal questioning the finding given by the trial Court. 12. During the pendency of the appeal, the sole appellant/ 1st defendant died. His legal representatives came on record as appellants 2 to 5 vide court order dated 26-7-2018 in I.A.No.1 of 2018. 13. Heard Sri M. Radha Krishna, learned counsel represented on behalf of Sri E.V.V.S. Ravi Kumar, learned counsel for the appellants and Sri Vedula Venkata Ramana, learned Senior Counsel, on behalf of the 1st respondent/plaintiff. 14. The learned counsel for appellants would contend that the trial Court erroneously came to conclusion that the plaintiff is ready and willing to perform her part of the contract. He would further contend that even though the plaintiff is not having sufficient capacity to pay the remaining balance amount to the 1st defendant, the trial Court decreed the suit. 14. The learned counsel for appellants would contend that the trial Court erroneously came to conclusion that the plaintiff is ready and willing to perform her part of the contract. He would further contend that even though the plaintiff is not having sufficient capacity to pay the remaining balance amount to the 1st defendant, the trial Court decreed the suit. He would further contend that instead of dismissing the suit, the trial Court decreed the suit by granting relief of specific performance of agreement of sale dated 18-7-1990 and he would further contend that the appeal may be allowed by setting aside the judgment and decree passed by the trial Court. 15. Per contra, the learned counsel for 1st respondent/plaintiff would contend that the trial Court, on appreciation of the entire evidence on record, rightly decreed the suit and there is no need to interfere with the findings given by the trial Court in its judgment. 16. Now, the points for determination are: (1) Whether the plaintiff is ready and willing to perform her part of the contract or whether there are any laches on the part of the 1st defendant in performing his part of the contract ? (2) Whether the trial Court is justified in holding that the plaintiff is entitled to the main relief of specific performance of agreement of sale dated 18-7-1990 ? (3) Whether the judgment and decree passed by the trial Court needs any interference ? and (4) To what extent ? 17. Point No.1: Whether the plaintiff is ready and willing to perform her part of the contract or whether there are any laches on the part of the 1st defendant in performing his part of the contract ? The case of the plaintiff is that the 1st defendant is the absolute owner of the plaint schedule property, having purchased the same from VUDA under a registered sale deed dated 12-8-1980. The plaintiff further pleaded that the 1st defendant agreed to sell the plaint schedule property to her for a valuable consideration of Rs.4,14,000/- and the 1st defendant received an amount of Rs.1,34,000/-. The 1st defendant executed a sale agreement on the even date in favour of the plaintiff and subsequently even though the plaintiff is ready and willing to perform her part of the contract and the defendants failed to execute a regular registered sale deed in favour of the plaintiff. 18. The 1st defendant executed a sale agreement on the even date in favour of the plaintiff and subsequently even though the plaintiff is ready and willing to perform her part of the contract and the defendants failed to execute a regular registered sale deed in favour of the plaintiff. 18. The suit is based on Ex.A-1 agreement of sale said to have been executed by the 1st defendant. The plaintiff in the suit is claiming the relief of specific performance of agreement of sale dated 18-7-1990. The recitals in Ex.A-1 are: (1) The vendor has agreed to sell the schedule property to the vendee for a sum of Rs.4,14,000/- and out of the total sale consideration, the vendee paid an amount of Rs.1,34,000/- on 18-7-1990 to the vendor in cash and agreed to pay the balance of sale consideration of Rs.2,80,000/- to the vendor before the Joint Sub-Registrar at the time of registration of the sale deed; (2) The vendor agreed to vacate and handover the possession of the scheduled property to the vendee on or before 01-10-1990; (3) The vendee agreed to take the sale deed within 15 days from the date of handing over possession of the scheduled property to him; (4) Without any reference to condition No.1, the vendee is at liberty to pay the balance sale consideration in instalments to the vendor, subject to the convenience of the vendee, even before registration of the sale deed; (5) The vendor agreed to apply and to obtain (1) the Encumbrance Certificate from 12-8-1980 till this date, (2) Income Tax Clearance Certificate and (3) any other certificate necessary for executing the registered sale deed and deliver the certificates to the vendee for preparing the sale deed; (6) The vendor agreed to pay all the taxes due on the scheduled property till 30-9-1990 either to the Municipality or to the State Government and obtain ‘No Dues Certificate’ in proof of such payment and handover the certificates to the vendee; (7) The vendor further agreed to pay the electrical consumption charges for the electrical energy consumed by him up to 30-9-1990 and obtain ‘No Dues Certificate’ from the Electricity Board and deliver the same to the vendee. The vendor further agreed to sign the necessary documents to apply to the Electricity Board for transfer of the Service Connection to the name of the vendee. 19. The vendor further agreed to sign the necessary documents to apply to the Electricity Board for transfer of the Service Connection to the name of the vendee. 19. As stated supra, Ex.A-1 is a crucial document based on which the suit is filed. The execution of Ex.A-1 agreement of sale by the 1st defendant is not at all in dispute and receipt of advance amount of Rs.1,34,000/- is also not in dispute. P.W.1 is the husband of the plaintiff. P.W.4 is the plaintiff herein. Though the plaintiff examined two witnesses on her behalf as P.Ws.2 and 3, they are not attestors to Ex.A-1 agreement of sale. The evidence of P.Ws.2 and 3 testified about their presence at the time of Ex.A-1 agreement of sale. As stated supra, the execution of Ex.A-1 agreement of sale and receipt of advance amount of Rs.1,34,000/- is not at all disputed by the 1st defendant. The terms and conditions in Ex.A-1 agreement of sale are not in dispute by the 1st defendant. The two important terms and conditions agreed in between the plaintiff and the 1st defendant in Ex.A-1 agreement of sale are: (1) The vendor agreed to vacate and handover the possession of the scheduled property to the vendee on or before 01-10-1990; and (2) The vendee agreed to take the sale deed within 15 days from the date of handing over possession of the scheduled property to her; Though the 1st defendant disputing the terms and conditions of No.1 as stated supra, during the course of trial, but he clearly admitted about the execution of Ex.A-1 agreement of sale and also terms and conditions incorporated in Ex.A-1 agreement of sale. Furthermore, the 1st defendant is not an illiterate and he is an employee in Port Trust. The same is admitted by the 1st defendant himself in his evidence. 20. The evidence on record reveals that the 1st defendant executed a sale agreement in favour of the plaintiff by agreeing the terms and conditions incorporated in Ex.A-1 agreement of sale. The 1st defendant is not an illiterate and he is an employee in Port Trust and he can read and write in English. He himself admitted the execution of Ex.A-1 agreement of sale after perusing the terms and conditions in Ex.A-1 agreement of sale. The same is not in dispute. The 1st defendant is not an illiterate and he is an employee in Port Trust and he can read and write in English. He himself admitted the execution of Ex.A-1 agreement of sale after perusing the terms and conditions in Ex.A-1 agreement of sale. The same is not in dispute. As per the terms and conditions in Ex.A-1 agreement of sale, the first condition to be performed by the 1st defendant is, he has to take steps to vacate the tenant from the premises on or before 01-10-1990, then only the balance of sale consideration has to be paid before the Sub-Registrar on the date of execution of sale deed and sale deed has to be executed by 15-10-1990. Therefore, it is made clear that after handing over the possession of the schedule property within 15 days, the balance of sale consideration has to be paid by the plaintiff and the sale deed has to be obtained by 15-10-1990. Furthermore, it is made clear that unless the tenant is vacated the premises, the latter part of the performance by the plaintiff does not arise. The material on record reveals that as on the date of filing of the suit also, the tenant is in possession of the plaint schedule property. The 1st defendant i.e. D.W.1 admits in cross-examination that he has not delivered the possession of the suit schedule property, as a tenant is residing in a part of the suit schedule house and he is in occupation of one room and a kitchen of the suit schedule property. Since the 1st defendant has not taken any steps to vacate the tenant from the suit schedule property by 01-10-1990, as agreed in Ex.A-1 agreement of sale, now he cannot argue that the plaintiff is not ready and willing to perform her part of the contract at all the material points of time. It is specifically pleaded in Ex.A-2 legal notice by the plaintiff that in spite of repeated requests made by the plaintiff, the 1st defendant postponed to evict the tenant from the petition schedule premises. There is no whisper in Ex.A-3 that what are the steps taken by the 1st defendant to vacate the premises by the tenant. There is no whisper in Ex.A-3 reply notice, though he made several requests, the tenant refused to evict the premises. There is no whisper in Ex.A-3 that what are the steps taken by the 1st defendant to vacate the premises by the tenant. There is no whisper in Ex.A-3 reply notice, though he made several requests, the tenant refused to evict the premises. As per the terms and conditions incorporated in Ex.A-1, the property has to be delivered by 01-10- 1990 and after delivery of property only, within 15 days the balance of sale consideration has to be paid by the plaintiff on the date of registration of sale deed by 15-10-1990. In fact, no evidence is produced by the 1st defendant to show that he has taken steps to got vacate the premises by the tenant. Unless the vacant possession of the schedule property is given, latter part of the performance by the plaintiff does not arise. Therefore, it is clear that the 1st defendant is not ready and willing to perform his part of the contract by 01-10- 1990. Furthermore, it is not the case of the 1st defendant that by 01-10-1990 or by 15-10-1990, the tenant vacated the premises. As per the case of the 1st defendant, he is receiving rent of Rs.800/- per month from the tenant by the date of institution of the suit by the plaintiff. Furthermore, Ex.A-2 goes to show that since the 1st defendant is not ready and willing to perform his part of the contract within the stipulated time, the plaintiff got issued a legal notice on 29-01-1991 to the 1st defendant and later the 1st defendant issued a reply notice dated 15-4-1991 under Ex.A-3. On appreciation of the entire evidence on record, the trial Court held that the plaintiff paid advance amount of sale consideration of Rs.1,34,000/- only and the alleged another payment of Rs.30,000/- was disbelieved by the trial Court. I do not find any illegality in the said finding given by the trial Court. 21. As seen from the material on record, it is clear that the suit was instituted in the year 1992 and the same was numbered in the year 1993. The plaintiff initially got issued a legal notice under Ex.A-2. The 1st defendant has not issued any legal notice to the plaintiff by 01-10-1990 by informing the plaintiff that the tenant is refusing to vacate the schedule premises. The plaintiff initially got issued a legal notice under Ex.A-2. The 1st defendant has not issued any legal notice to the plaintiff by 01-10-1990 by informing the plaintiff that the tenant is refusing to vacate the schedule premises. In fact, the plaintiff got issued a legal notice under Ex.A-2 to the 1st defendant and later after receipt of legal notice only, the 1st defendant issued a reply notice under Ex.A-3. According to the plaintiff, the 1st defendant has not delivered the schedule property and not obtained ‘No Objection Certificate’ from the concerned departments and failed to produce title deed by the 1st defendant. It was specifically pleaded by the 1st defendant that the plaintiff is not having sufficient capacity to pay the remaining part of sale consideration. The evidence of P.W.4 coupled with Exs.A-4 to A-14 clearly goes to show that the plaintiff is having capacity to pay the remaining balance of sale consideration amount to the 1st defendant. Furthermore, the payment of balance of sale consideration has to be taken place only after delivery of the property has been taken place by the 1st defendant on or before 01-10-1990. The evidence of P.W.1 goes to show that she is having property and her husband is also having property. Furthermore, the total agreed sale consideration is Rs.4,14,000/-, out of which Rs.1,34,000/- was paid, nearly 1/3rd advance amount of total sale consideration was paid and the plaintiff has to pay the remaining balance of Rs.2,80,000/- only to the 1st defendant. The payment of remaining balance of sale consideration will arise by 15-10-1990 after delivery of possession by 01-10-1990. Admittedly, the possession of the schedule property was not delivered by the 1st defendant, which forced the plaintiff to institute a suit for specific performance of agreement of sale. 22. It is well settled that the courts should bear in mind that when the parties prescribed certain time limit for taking steps by one or other parties to vacate the tenant from the plaint schedule property, it must have some significance and the said time limit cannot be ignored altogether. The reasons offered by the 1st defendant for the delay or omission on the part of the 1st defendant to take any steps in the matter to vacate the tenant from the plaint schedule property are obviously untrue and it is clear that the 1st defendant is throwing blame on the plaintiff. The reasons offered by the 1st defendant for the delay or omission on the part of the 1st defendant to take any steps in the matter to vacate the tenant from the plaint schedule property are obviously untrue and it is clear that the 1st defendant is throwing blame on the plaintiff. The fact remains that from the date of agreement of sale till the date of filing of the suit, the 1st defendant has not taken any steps in the matter to get vacate the tenant from the plaint schedule property to comply the first condition incorporated in Ex.A-1 agreement of sale. The material on record reveals that the plaintiff deposited the balance of sale consideration during the pendency of the suit before the trial Court. 23. The learned counsel for appellant would contend that in original plaint itself there is no mention by the plaintiff that even though the plaintiff is ready and willing to perform her part of the contract the 1st defendant refused to perform his part of the contract. As seen from neat copy of the amended plaint, the plaint was amended by inserting para-(o) to Para III, as per the orders dated 27-02-1998 in I.A.No.17 of 1998. It seems that the plaintiff filed a petition to amend the plaint by incorporating para-(o) to Para III, that petition was allowed by the trial Judge, the 1st defendant has not taken any steps to challenge the said order passed in I.A.No.17 of 1998 by the trial Court. The 1st defendant also filed an additional written statement and after framing issues, the learned trial Judge conducted trial in the year 2000. If the 1st defendant is having any grievance in respect of amendment of plaint, he has to file an appeal to challenge the order passed by the trial Court in I.A.No.17 of 1998, but he failed to do so. Now, the 1st defendant cannot plead that the plaintiff has not complied the conditions of Section 16(2) of Specific Relief Act, 1963. Ex.A-2 goes to show that the plaintiff got issued a legal notice on 29-01-1991 to the 1st defendant expressing her readiness and willingness to perform her part of the contract and demanded the 1st defendant to perform his part of the contract. 24. The learned counsel for appellant placed reliance in Man Kaur (Dead) by LRs v. Hartar Singh Sangha (2010) 10 SCC 512 . 24. The learned counsel for appellant placed reliance in Man Kaur (Dead) by LRs v. Hartar Singh Sangha (2010) 10 SCC 512 . In that decision, the apex Court held as follows: “The plaintiff purchaser of property was a non-resident Indian. Agreement of sale entered into between parties through power of attorney-holders. Agreement on behalf of the plaintiff signed by different attorney-holder and suit filed by another attorney-holder. Earlier attorney-holder who executed agreement on behalf of the purchaser was not examined. Other attorney-holder who had filed suit was examined but stated unawareness of transaction before the issuing of suit notice. The plaintiff could not arrange for balance amount on the day fixed. The defendant vendor contended that the plaintiff was not ready and willing to perform the contract and that the suit was not filed by a competent person. Agreement provided for payment of double amount of earnest money in case of breach by vendor.” In the case on hand, the husband of the plaintiff is examined as P.W.1 and the plaintiff is also examined as P.W.4 during the course of trial. P.W.4 is a resident of India. The agreement of sale was entered into between the plaintiff and the 1st defendant only. Therefore, the facts and circumstances in the cited decision are different to the instant case. 25. The learned counsel for appellant placed reliance in U.N. Krishna Murthy (since deceased) through LRs v.A.M. Krishna Murthy 2022 LiveLaw (SC) 588. The learned counsel for appellant also placed another reliance of the decision passed by this Court in P. Sanjeevarayudu v. B. Lakshminarayana Reddy (died) by L.Rs. A.S.No.2715 of 2004, dated 07-12-2023. In the case on hand, there are laches on the part of the 1st defendant only for non-compliance of the primary condition incorporated in Ex.A-1 agreement of sale, the 1st defendant failed to perform his part of the contract by 01-10-1990. Therefore, the facts and circumstances in the cited decisions are different to the instant case. 26. The learned counsel for appellant placed another reliance in Bachhaj Nahar v. Nilima Mandal (2008) 17 SCC 491 . In that decision, it was held as follows: “13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. 26. The learned counsel for appellant placed another reliance in Bachhaj Nahar v. Nilima Mandal (2008) 17 SCC 491 . In that decision, it was held as follows: “13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.” In the case on hand, the trial was commenced by the learned trial Judge in the year 2000. During the year 1998 the plaintiff sought relief of amendment of the plaint vide I.A.No.17 of 1998 by inserting para-(o) to Para-III. That application was allowed by the trial Judge on hearing both sides and the 1st defendant failed to take any steps to challenge the said order passed by the learned trial Judge. After allowing the said application, the 1st defendant filed an additional written statement and issues were framed by the learned trial Judge and later the trial was commenced in the year 2000. Therefore, the facts and circumstances in the cited decision are different to the instant case. 27. After allowing the said application, the 1st defendant filed an additional written statement and issues were framed by the learned trial Judge and later the trial was commenced in the year 2000. Therefore, the facts and circumstances in the cited decision are different to the instant case. 27. The learned counsel for appellant placed another reliance in Mehboob-Ur-Rehman (Dead) Through L.Rs v. Ahsanul Ghani (2019) 19 SCC 415 . The facts and circumstances in the cited decision are the relief of amendment is sought by the plaintiff before the first appellate Court but not before the trial Court. Therefore, the facts and circumstances in the cited decision are different to the instant case. 28. The law is well settled by the apex Court in a case of Zarina Siddiqui v. A. Ramalingam MANU/SC/0975/2014, wherein it is held as follows: “The equitable discretion to grant or not to grant relief for specific performance also depends upon the parties' conduct. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the Court, then such discretion should not be exercised by refusing to grant specific performance.” In the case on hand, the material on record reveals that there are laches on the part of the 1st defendant for not performing his part of the contract by 01-10-1990 viz., to take steps to vacate the tenant from the plaint schedule property. As per the terms and conditions incorporated in Ex.A-1 agreement of sale, within 15 days from the date of delivery of possession of the schedule property by the 1st defendant, the plaintiff has to obtain a sale deed. Therefore, there are no laches on the part of the plaintiff and the entire laches are on the part of the 1st defendant only to perform his part of the contract. Therefore, the plaintiff is entitled to the main relief of specific performance of agreement of sale. 29. On appreciation of the entire evidence on record, the trial Court decreed the suit against the defendants 1 and 2 for granting the relief of specific performance of agreement of sale. Therefore, the plaintiff is entitled to the main relief of specific performance of agreement of sale. 29. On appreciation of the entire evidence on record, the trial Court decreed the suit against the defendants 1 and 2 for granting the relief of specific performance of agreement of sale. The 2nd defendant is none other than the wife of 1st defendant, though the 2nd defendant engaged an advocate before the trial Court, she did not enter into the witness-box to prove her defence. The learned trial Judge, on appreciation of the entire evidence on record, passed the judgment and decree against both the defendants. No appeal is filed by the 2nd defendant against the said judgment and decree passed by the trial Court. The 2nd defendant is shown as respondent No.2 in the appeal proceedings by the 1st defendant. As stated supra, the plaintiff is entitled to the main relief of specific performance of agreement of sale dated 18-7-1990. Though the decree was passed against the 2nd defendant, along with the 1st defendant, the 2nd defendant has not challenged the said judgment and decree. Therefore, there is no need to interfere with the finding given by the trial Court insofar as granting the main relief of specific performance of agreement of sale dated 18-7-1990. 30. The plaintiff herein is claiming damages at the rate of Rs.2,000/- per month from 01-10-1990 onwards, the trial Court granted damages at the rate of Rs.800/- per month from 01-10-1990 till the date of delivery of possession of the plaint schedule property to the plaintiff. The trial Court has not given any cogent reasons in its judgment to show that what is the basis for granting of damages at the rate of Rs.800/- per month. In fact, no evidence is placed by the plaintiff to prove the claim of damages at the rate of Rs.2,000/- per month. In the case on hand, primary relief of specific performance of agreement of sale is granted. In fact, no evidence is adduced by the plaintiff to establish her claim of Rs.2,000/- per month towards damages from 01-10-1990 till the date of delivery of possession of the schedule property. Therefore, the plaintiff is not entitled for damages at the rate of Rs.800/- per month from 01-10-1990 onwards till the date of delivery of possession of the schedule property as granted by the trial Court. 31. Therefore, the plaintiff is not entitled for damages at the rate of Rs.800/- per month from 01-10-1990 onwards till the date of delivery of possession of the schedule property as granted by the trial Court. 31. In the result, the appeal suit is allowed in part by setting aside the finding given by the trial Court in its judgment in O.S.No.75 of 1993, dated 20-01-2001, insofar as granting damages of Rs.800/- per month from 01-10-1990 till the date of delivery of possession of the schedule property. The rest of the judgment of the trial Court holds good. The plaintiff is entitled to the main relief of specific performance of agreement of sale dated 18-7-1990 as ordered by the trial Court. In the facts and circumstances of the case, both parties shall bear their own costs. Pending applications, if any, shall stand closed.