DEVASSY Vs. ADBULLA KOYA HAJI

JUDGEMENT

(1.) Both the writ petition and revision are filed by the second plaintiff in OS No. 89/08 on the file of the Sub Court, Palakkad. The above suit was one for specific performance of an agreement for sale, and the respondents are the defendants. The writ petition is filed challenging the order passed in Ext. P3 application filed by the defendants by which the learned Sub Judge directed the plaintiffs to deposit the balance sale consideration due within the time-limit fixed. Consequent to the non-deposit of the balance sale consideration within the time fixed, as ordered by the Court, the suit was dismissed. That order dismissing the suit is challenged in the revision. Short facts germane for consideration in the writ petition and also the revision can be summed up thus:

(2.) I heard the counsel on both sides.

(3.) The learned counsel for the plaintiffs, Senior Counsel Sri. T. Krishnanunni assailed the orders impugned in the writ petition and the revision contending that readiness and willingness on the part of the plaintiffs in a suit for specific performance, as covered by Section 16(c) of the Specific Relief Act, is a relevant factor to be determined in the trial of the suit and at any rate, the plaintiffs need show only their financial ability for performance of the contract of sale during the pendency of the suit. Plaintiffs have produced Ext. P5 series, documents issued by the bank evidencing the financial capacity of the first plaintiff, but, according to the counsel, those materials were ignored and discarded by the Court while passing the order dismissing the suit on the premise that the plaintiffs' counsel after 'undertaking' to tender the deposit, had failed to do so. The counsel cannot give such an 'undertaking' and if at all any representation was made by the counsel as to tendering of deposit subsequent adjournment granted by the Court would indicate the submissions construed by the Court as an 'undertaking' given by the counsel on 28/06/2008 never continued to be in force, according to the counsel. The Court below has passed the order dismissing the suit invoking Section 151 CPC on the premise that the plaintiffs after having given an 'undertaking' to make the deposit flouted and violated it, but such an order non-suiting them was passed, according to the counsel, without even giving an opportunity to show that there was no 'undertaking' and non-compliance of any order passed by the Court.