Madras High Court
P.Jayamuthu Naicker vs V.Mani on 8 June, 2022
S.A.No.395 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.395 of 2022
P.Jayamuthu Naicker ... Appellant/Plaintiff
Vs.
1.V.Mani
2.Raji
...Respondents/ Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree in A.S.No.14 of 2016, on the
file of the Additional Sub-Ordinate Judge at Kancheepuram, dated
25.10.2019 dismissing the Appeal suit by confirming the Decree and
Judgment passed by the learned Principal District Munsif Judge at
Kancheepuram in O.S.No.155 of 2013 dated 21.08.2014.
For Appellant : Mr.A.Lakshmi Narasimhan
https://www.mhc.tn.gov.in/judis
S.A.No.395 of 2022
JUDGMENT
The plaintiff who has unsuccessfully contested a suit for specific
performance is the appellant before this Court. The facts in brief are as
follows:-
2. The appellant/ plaintiff had filed the suit O.S.No155 of 2013 on the
file of the Principal District Munsif, Kancheepuram, seeking relief for
specific performance of an oral agreement of sale with reference to the suit
schedule property. It is the case of the plaintiff that he had entered into this
oral agreement of sale to purchase the suit schedule property from the 1st
defendant for a total sale consideration of Rs.27,000/-. A sum of
Rs.20,000/- was paid on the date of the agreement and the balance was
agreed to be paid at the time of registration. Pursuant to this oral agreement
of sale, the 1st defendant had also handed over the possession of the suit
property with the original documents. Despite several requests being made
by the plaintiff to execute the sale deed, the defendant has not been coming
forward for the registration of the sale agreement.
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S.A.No.395 of 2022
3. A legal notice dated 01.10.2009 was issued by the 1st defendant
and there was no response to the same. When the plaintiff had personally
approached the defendant to execute the sale deed, the defendant demanded
a higher amount since the value of the properties had increased. The
plaintiff therefore paid a sum of Rs.64,000/- to the 1st defendant and
obtained a registered sale deed on 26.10.2009, in his favour to a extent of 30
cents from out of the entire extent of 54 cents in Survey No.521/3A. The
plaintiff would contend that he had paid the entire sale consideration and
was ready to perform his part of the contract but however it was the
defendant who was stalling the same. Therefore, he had come forward to
file the suit in question.
4. The 1st defendant though served had not appeared before the Court
and was therefore set ex parte on 27.09.2013. The 2nd defendant had entered
appearance in the suit but did not choose to file a written statement and was
therefore, set ex parte on 07.12.2013. The Courts below proceeded to pass a
Judgment after hearing the plaintiff alone. The learned District Munsif,
Kancheepuram, dismissed the suit on the grounds of limitation. This
Judgment was taken up on appeal by the plaintiff to the Additional
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S.A.No.395 of 2022
Subordinate Judge, Kancheepuram, in A.S.No.14 of 2016 who had also
dismissed the appeal with the very same observation.
5. Heard Mr.A.Lakshmi Narasimhan, learned counsel for the
appellant.
6. The plaint does not indicate the date on which the plaintiff and the
defendant had entered into the oral sale agreement. That apart, the
contention of the plaintiff that he had paid a sum of Rs.64,000/- and
obtained a registered sale deed on 26.10.2009, to an extent of 30 cents
appear to be suspicious, since the 1st defendant had issued a legal notice
dated 01.10.2009 (Ex.A.8) acknowledging the sale agreement and payments
but refusing to execute the sale deed as there was a great delay on the side
of the plaintiff to seek specific performance. This legal notice is issued in
the year 2009, however, the plaintiff has filed the suit for specific
performance in the year 2013 nearly 4 years after the refusal of consent and
after defendant has categorically informed the plaintiff that he would not
execute the sale deed. In the light of the above, the time for filing the suit
for specific performance would commence at least from the date of Ex.A.8
(legal notice dated 01.10.2009). However, the petitioner has not come
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S.A.No.395 of 2022
forward to file the suit for specific performance within 3 years thereafter.
7. In view of the above, no ground is made out for interfering with the
concurrent Judgment and Decree of the Courts below. Accordingly, the
Second Appeal is dismissed for want of any Substantial Question of law.
Consequently, connected Miscellaneous Petition is closed.
08.06.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The Principal District Munsif
at Kancheepuram
2.The Additional Sub-Ordinate Judge
at Kancheepuram
https://www.mhc.tn.gov.in/judis
S.A.No.395 of 2022
P.T. ASHA, J,
shr
S.A.No.395 of 2022 and
CMP.No.8367 of 2022
08.06.2022
https://www.mhc.tn.gov.in/judis
