Karuppanna Gounder, Thangavel, Selvaraj and Natesan vs P. Nallusamy

M.M. Sundresh, J.—The defendants in the suit have filed the present appeal challenging the judgment and decree in O.S. No. 254 of 1995, wherein the Court below has decreed the suit filed by the respondent for specific performance.

The case of the plaintiff in a nut shell is as follows:

The suit property belongs to the defendants. The plaintiff and the defendants have entered into an agreement to sell the suit property on 11.01.1995. As per the said agreement, the sale transaction will have to be completed within four months from the date of the agreement. A sum of Rs. 1,35,000/- has been paid in pursuant to the said agreement and the remaining sale consideration will have to be paid at the time of execution of the sale deed. The plaintiff is ready and willing to execute the sale. The plaintiff has called the defendants to go over to the Sub-Registrar''s office at Karur on 08.05.1995 to receive the balance sale price and execute the sale deed. However, the defendants did not turn up and hence the suit has been filed seeking the relief of the execution of the sale deed by the defendants.

A written statement has been filed by the defendants stating that it is true that the defendants have agreed to sell the suit property to the plaintiff and the price was fixed at Rs. 2,390/- per cent. It is also true that the defendants have received a sum of Rs. 1,35,000/- from the plaintiff. It is denied that the plaintiff is ready and willing to perform his part of the contract. It is the plaintiff who evaded the execution of the sale deed as per the agreement. It is not true that the plaintiff was waiting for the defendants on 08.05.1995 for the execution of the sale deed. It is the plaintiff who violated the terms of the agreement and he has not issued the notice demanding the execution of the sale deed. The plaintiff is not entitled to return money of Rs. 1,35,000/-, since the delay was due to the plaintiff. Hence the defendants prayed for the dismissal of the suit.

The following issues have been framed by the Court below:

(1) Is the plaintiff not ready and willing to execute the sale deed by paying the sale consideration?

(2) Is the plaintiff not entitled to recover the advance amount?

(3) What other relief the plaintiff is entitled to?

On behalf of the plaintiff, two witnesses have been examined and Ex.A1 & A2 have been marked. However, on behalf of the defendants, there was no witness examined and no document marked. The trial Court on examination of P.W. 1 and P.W. 2 read with Ex.A1 & A2 decreed the suit as prayed. Challenging the same, the present appeal has been preferred by the defendants.

P.W. 1 is the plaintiff and P.W. 2 is the middleman who was responsible for the agreement between the parties. Ex.A1 is the agreement between the parties and Ex.A2 is the bank pass book in the name of the plaintiff showing the sufficient amount for the execution of the sale deed. P.W. 1 has deposed that he is ready and willing and he was in fact present on 08.05.1995 for the purpose of execution of sale deed. P.W. 1 has also stated that as per Ex.A2, he has got the amount for the execution of the sale deed and it is the defendants who are evading the execution. P.W. 2 has deposed in favour of the plaintiff. He also states that the defendants have been evading the execution of sale deed. He further states that the defendants have agreed to go to the Registrar''s office on 08.05.1995 for the execution of the sale deed, but they failed to turn up.

The learned Counsel for the appellants submitted that the plaintiff has not proved his readiness and willingness in executing the sale deed. According to the learned Counsel, an application was filed before the Court below in I.A. No. 780 of 2000 for reopen the case, but however the same was dismissed and thereafter the suit was decreed. It is submitted that in the absence of a proper opportunity, the Court below ought not have decreed the suit, since the valuable rights of the appellants are affected. The learned Counsel further submitted that therefore the judgment and decree of the Court below will have to be set aside and the matter will have to be remanded back to the Court below for proper consideration.

The learned Counsel for the respondent submitted that the Court below has correctly considered the evidence of P.W. 1 and P.W. 2. The Court below has given a finding that the plaintiff is always ready and willing by taking into consideration of the oral evidence coupled with Ex.A2. According to the learned Counsel, the Court below has given a finding upon the evidence on record, hence the judgment and decree of the Court below will have to be confirmed.

On a reading of the material available on record, this Court is of the opinion that it is not the case of the defendants that P.W. 2 is an interested witness. The Court below has considered the evidence of P.W. 2 regarding the fact that the plaintiff was waiting for the defendants on 08.05.1995 for the execution of the sale deed. The Court below has also considered the evidence of P.W. 1 read with Ex.A2 to conclude that the plaintiff has established that he was ready and willing to execute the sale deed. Even a perusal of the affidavit filed in support of I.A. No. 780 of 2000, the same would show that the said affidavit was filed to reopen only for the purpose of proving that the suit property has been sold in favour of third party.

It is well settled principle of law that a party who has purchased, pending the suit is neither a necessary nor a proper party to the proceedings. Moreover, the said fact is not necessary for deciding the suit filed seeking specific performance of the agreement. Hence this Court finds that no interference needs to be called for, more so where the defendants themselves admit the execution of the agreement and the receipt of the advance money. Hence the appeal is dismissed. No costs. Consequently, the connected C.M.P. is also closed.