M K USMAN KOYA Vs. C S SANTHA

JUDGEMENT

(1.) The 1st plaintiff in a suit for specific performance filed as O.S. No, 126/96 of the Sub Court, Kozhikode, has come up in appeal challenging the dismissal of the suit. The, 2nd plaintiff is new impleaded as the 2nd respondent.

(2.) The plaintiffs contended that the schedule building which is actually one of the seven rooms in a larger building was entrusted to them by the defendant (1st respondent) on 1.4.1987 as per Ext. A1 agreement providing for rent of Rs. 335/-per mensem and that the 1st respondent along with his partner - 2nd plaintiff was thereunder conducting a business therein.

(3.) The background in which the agreement was executed was the present 1st respondent's initiating R.C.P. No. 41/88 against various subtenants. The purport of the agreement was that even if R.C.P. 41/88 was allowed, the 1st plaintiff would not be evicted from his portion of the building while the other subtenants would be evicted. The 1st plaintiff had paid a sum of Rs. 10,000/- and offered to pay further sum of Rs. 15,000/- as further consideration for the agreement as and when the then pending partition suit was over. That event took place on 29.3.1989; but the plaintiffs were never informed thereof. Intention of the defendant to resile from Ext. A1 came to the notice of the plaintiffs when they received notice in the E.R filed by the defendant to execute R.C.R No. 41788. Immediately they sent Ext. A6 notice and filed the suit.