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10. Basing on the respective contentions, the Trial Court framed the following issues:

1. Which of the two agreements of sale set up by the plaintiff and the defendant No. 1 is true, valid and binding the other?

2. Whether the Sale Deed dated 15-6-1991 in favour of the defendant No. 2 is not hit by the bar of the lis-pendence?

3. Whether the plaintiff is entitled to the relief of specific performance as prayed for?

4. Whether the defendants are entitled to exemplary costs?

5. To what relief?

11. Seven witnesses were examined for the Plaintiff and Ex.A1 to A21 were marked. Two witnesses were examined for the defendant and Ex.B-1 to B3 were marked. Ex.X-1 to X6 were marked by the Court.

12. The lower Court after considering the evidence on record recorded a finding that Agreement of Sale and Memorandum of Understanding are true and valid and binding on the defendant No. 1 and the Agreement of Sale put up by the defendant No. 1 vide Ex.B1 was not true and was not binding. The Trial Court held that the Sale Deed dated 15-6-1991 executed in favour of the defendant No. 2 was hit by the provisions of lis pendence and consequently held that the plaintiff is entitled for specific performance of the Agreement of Sale subject to payment of the balance sale consideration of Rs. 2,50,000/- together with interest @ 18% per annum from the date of Ex.A1 i.e., 12.3.1990 till the date of payment. Accordingly, the suit was decreed by a judgment and decree dated 10-6-1999.

From 1-4-1991, the interest would be Rs. 1,100/- per month instead of Rs. 1,700/-per month.

Final payment i.e., Rs. 1,50,000/- shall be paid on or before 31-7-1991.

23. Plaintiff should pledge registered Sale Deeds in favour of wife of Ranga Rao on or before 30-10-1990 with condition that the plaintiff should register the said plots in case they failed to pay Rs. 1,50,0007- on or before 31-7-1991 and this Memorandum of Understanding Ex.A2 was signed by Ranga Rao and defendant No. 1 and the plaintiff. It was scribed by M. Narsimha Rao. Ex.A6 is a letter written by the plaintiff to defendant No. 1, wherein it has been stated that he could not meet on 14-10-1990 as Chandrasekhar had a fracture. He stated in the said letter that as per the understanding, he intended to pay the amount on or before 31-10-1990 and since the plaintiff had stated that he would go to M. Narsimha Rao and received the amount in the presence of M Narsimha Rao at Hanamkonda and finally he stated that defendant No. 1 should inform as to that he is going to M. Narsimha Rao, so that he will also go over there and pay the money, which is to be paid. But, thereafter, the defendant issued a notice on 6-5-1991 referring to another agreement dated 12-4-1990 demanding balance sale price of Rs. 3,99,000/-and at this point of time, the suit was filed seeking specific performance of the Agreement of Sale. The Trial Court has held that the agreement under Ex.X-1 on the basis of which a notice was issued by the defendant was fabricated and tampered. But, however, the concentration was made on Ex.A1 and A2. It is also to be noted in this regard that as on the date of the filing of the suit, the property was already sold to defendant No. 2 and the possession was given according to the Sale Deed. The Trial Court also found that the said Sale Deed was not valid and hit by lis pendence as defendant No. 2 has purchased the same with full notice that the matter is pending in the Civil Court in respect of the same property,

43. The contention of the learned Counsel Sri T. Veerabhadraiah, is that it has reached the finality in so far as the first defendant is concerned, and other who are claming through the 1st defendant as subsequent purchasers cannot challenge the same, and (that fact has to be taken into consideration since it operates as res judicata.) The learned Counsel appearing for the subsequent purchaser during the pendency of the suit has categorically stated that they are not parties to the appeal and the delay condonation petition, and it is not binding on them, and the document cannot be received. We are of considered view that the document is absolutely not necessary for giving a just decision in this case, since the rights of DW 1 has to be worked out by this Court as the ready and willingness alleged on the part of the plaintiff is being challenged by, the subsequent purchasers and it can be decided only after taking into consideration of conduct of first defendant and his alleged rights. Hence it is dismissed. In view of the settled proposition of law overruling the earlier principles laid down by the Supreme Court in a decision referred supra, the subsequent purchaser can challenge the ready and willingness of the plaintiff. It is clear and Court can take judicial notice that the decision relating to first defendant has reached the finality in view of dismissal of delay condonation petition by this Court. It is only the persons who purchased during pendency of suit have to work out their remedies. If the terms of Ex.A2 are strictly considered, there is no sufficient compliance. The 1st defendant never asked for return of earlier agreement and did not mention about their existence even under Ex.X1. He never cancelled the earlier agreements or Ex.X1. He also never forfeited the amounts paid earlier or under alleged Ex.X1. This conduct has to be judged along with other circumstances. This Court is doubting the correctness of Ex.X1 as no acceptance has been given by the plaintiff for Ex.X1. The capacity to pay the amount is admitted by DW1 who states that the plaintiff has got 20 acres of land. He has examined another relation who is residing in USA to the effect that he has agreed to advance the money. The relief of specific performance is a discretionary relief and the person approaching for such a relief, is required to have clean conscious and conduct. Hence, it is not open for him to seek such a relief without first discharging his obligation. He has not issued any registered notice stating that he was ready and willing to perform his part of contract except writing a letter under Ex.A6. The contents of the letter do not make a mention about the performing the terms of the agreement under Ex.A2. Moreover, the amounts were not immediately deposited at the time of filling of the suit. If the said conduct is taken into consideration, namely about non-issue of reply non-performance of stipulated terms as per Ex.A2, it cannot be said that he was ready and willing to perform his part of contract under Ex.A1 and A2. We are not convinced about the same. His failure to show that he is ready and willing to perform his part of the contract makes it clear that the plaintiff certainly has to be non-suited. This is a case where both the parties are at fault. The plaintiff is unable to perform the stipulated terms as per Ex.A1 and A2. The first defendant is only responsible for bringing into existence of Ex.X1 and the corrections are found therein changing the stipulation of consideration etc. The other defendants who are appellants herein are equally guilty of purchasing the property during lis pendence. The suit property said to be a building which has been demolished to the ground by subsequent purchasers. If the totality of the conduct of all the parties are taken, they are blameworthy. More over when defendant No. 2 sold the property to subsequent purchasers during the pendency of the suit, they were brought on record. They did not care to file their statements. They did not raise their pleas. It is well settled law that no amount of evidence can be looked into without a pleading as per the principles laid down by the Privy Council in AIR 1930 PC 57. In that view of the matter, the contentions of subsequent purchaser, cannot be taken into consideration. More over, it is clearly stated in the amended CPC that filing of a statement is mandatory as per Order 8 Rule 1 which reads as follows: