THRESIAKUTTY MATHEW Vs. ELIKUTTY

JUDGEMENT

(1.) Review petitioners are the appellants 2 to 7 in A.S.No.484 of 1998, disposed by this Court as per judgment dated 16.11.2018. The suit was one for specific performance of Ext.A3 contract dated 18.09.1993 executed between the plaintiff and the 1st defendant for herself and on behalf of her children (defendants 2 to 4) who were minors at that time. Above suit was tried by the court below along with O.S.No.164 of 1994. That was a suit for prohibitory injunction simplicitor filed by the defendants in O.S.No.166 of 1994 against the original plaintiff/appellant. In the injunction suit, the averments were that the defendant therein tried to trespass upon the property involved in Ext.A3 contract and to reduce the property into his possession. After jointly trying the above suits, the trial court found that the original appellant (plaintiff) was not entitled to get a relief of specific performance of Ext.A3 contract and therefore the suit was dismissed. Consequently, O.S.No.164 of 1994 filed by the respondents was decreed. Aggrieved by the decree in O.S.No.164 of 1994 the original appellant preferred an appeal before the District Court. That court dismissed the appeal in limine at the stage of admission itself under Order XLI Rule 11 of the Code of Civil Procedure, 1908 (in short, "the Code"). Learned District Judge observed that the trial Judge was fully justified in decreeing O.S.No.164 of 1994. Learned District Judge further observed that the judgment and decree in O.S.No.164 of 1994 would not operate as res judicata in respect of O.S.No.166 of 1994 because there was no issue regarding right of the appellant to get a decree for specific performance of Ext.A3 contract. With the above observations, the appeal was dismissed by the District Court in limine. Finer questions relating to Section 11 and Order II Rule 2 of the Code arose in the appeal for consideration.

(2.) Ext.A3 is a disputed document. Plaintiff in the above suit contended that himself and the 1st defendant entered into a contract for sale of plaint schedule property on 18.09.1993. Admittedly, the properties scheduled to the plaint belonged to the 1st defendant and her deceased husband. It is the assertion in the plaint that the 1st defendant herself and on behalf of her minor children executed Ext.A3. Price agreed to between the parties was '62,000/- per acre and an amount of '1,00,000/- was paid by the plaintiff to the 1st defendant as advance sale consideration. Balance sale consideration was to be paid after measurement of the property. In spite of repeated demands the 1st defendant was not ready to discharge her obligations under Ext.A3.

(3.) Defendants opposed the plaint claim contending that the plaintiff had earlier filed a suit for prohibitory injunction as O.S.No.37 of 1994 and it was dismissed on 24.08.1994. Plaint schedule property admittedly belonged to 1st defendant and her minor children. This fact was known to the plaintiff at the time of entering into Ext.A3 contract. No permission under the Guardians and Wards Act, 1890 was obtained by either of the parties from the District Court concerned. Ext.A3 was not beneficial to the minor's interest. According to the defendants, Ext.A3 is legally unenforceable and it is bad for misrepresentation, threat, fraud and coercion.