K.P. ANTONY Vs. ABU BAKER

JUDGEMENT

(1.) I will be shirking my responsibility if I am not setting aside this judgment in exercise of the jurisdiction under Article 227 of the Constitution of India. The judgment is replete with mistakes and a total non -application of mind is well evident by a mere reading. The total sale consideration fixed for 11 cents of land is Rs. 93.5 lakhs and a sum of Rs. 25 lakhs was admittedly paid as advance by the plaintiff to the defendant. There is no discussion as regards discretion to grant or deny specific performance under Section 20 of the Specific Relief Act in the manner warranted. The decree grants a return of a sum of Rs. 5 lakhs by the defendant whereas the amount advanced by the plaintiff is concededly Rs. 25 lakhs. There is no finding that the balance sum of Rs. 20 lakhs was appropriated towards damages for breach of the contract.

(2.) THE most curious aspect is that the defendant has been directed to convey the property on his failure to return the advance amount after receiving the balance. A decree in a suit of this nature would normally enable the plaintiff to proceed against defendant and his assets for the amount advanced. I am totally dissatisfied with the manner in which the suit has been disposed of and that too in a slip shod manner. It is unnecessary to relegate the parties to file an appeal or a review of the judgment under the circumstances. I set aside the judgment and direct the court below to pass a judgment anew after hearing both sides. Both parties will be given full opportunity to substantiate their contentions. The defendant is undoubtedly entitled to contest the suit on merits since the ex -parte decree has been set aside by this judgment.