J. Pushpa vs A. Venkatesan and T. Masilamani

P.D. Dinakaran, J.—Aggrieved by an order dated 4.7.2001 made in I.A.No.147 of 2001 in O.S.No.11 of 1999 on the file of the learned

Subordinate Judge, Mettur, refusing to permit the revision petitioner/plaintiff to amend the prayer in O.S.No.11 of 1999, laid for specific

performance, directing the respondents/defendants-2 and 3, to execute the sale deed in pursuance of the sale agreement dated 15.7.1987, and

seeking permission to pray an alternative relief for refund of the advance amount, alleged to have been paid pursuant to the alleged sale agreement

dated 15.7.1987, the plaintiff has preferred the above revision.

The only objection raised by the respondents/ defendants-2 and 3 is that the belated plea for alternative prayer would take away the valid

defence of respondents/defendants-2 and 3, particularly when the revision petitioner/plaintiff seeks an alternative prayer after 11 years of filing of

the suit, that too, after a belated point of time, i.e., after examination of the plaintiff-witnesses.

Accepting the contentions of respondents/defendants-2 and 3, the learned Subordinate Judge, Mettur, by order dated 4.7.2001 dismissed

I.A.No.147 of 2001. Hence, the revision.

No representation on behalf of the revision petitioner/plaintiff.

Mr. G. T. Subramanian and Mr. N. Manoharan, learned counsel appearing for respondents-1 and 2 respectively, reiterated the various

contentions argued before the learned Subordinate Judge, Mettur.

After careful consideration of the submissions on either side, I am of the opinion that the plea of alternative prayer, viz., for refund of the

advance amount, alleged to have been paid pursuant to the alleged sale agreement dated 15.7.1987, said to have been entered into between the

revision petitioner/plaintiff and the father of the respondents herein, should not have been rejected at the threshold on a technical ground, as the

same is not based on any promissory note or a negotiable instrument, but based on an agreement for sale, the specific performance of which, is

sought for in the suit originally filed by the revision petitioner/plaintiff, resting their case on equity.

When the revision petitioner/plaintiff seeks the relief on equity, it may not be proper to reject the relief, purely on technicality. Hence, I am

obliged to set aside the order dated 4.7.2001 made in I.A.No.147 of 2001 and allow the revision, with a direction to the learned Subordinate

Judge, Mettur, to permit the respondents/ ksv

P.D. Dinakaran,J.

defendants-2 and 3 to suitably defend the alternative prayer also, with a further direction to the learned Subordinate Judge, Mettur, to dispose of

the suit within three months from the date of receipt of a copy of this order, on payment of Rs.1,000/- to the respondents/defendants-2 and 3

within two weeks from the date of receipt of a copy of this order, failing which, the above revision shall stand automatically dismissed.

The revision is ordered accordingly. No costs. Consequently, C.M.P.No.22109 of 2001 is closed.