UMMERKOYA Vs. C K LAZAR

JUDGEMENT

(1.) We may first examine the sustainability or otherwise of judgment in O. S.865 of 1990. The fate of CRP. 1136 & 1158 of 1999 depends upon the final decision in AS. 153/97. AS. 153/97 arises out of the judgment and decree in OS. 865 of 1990, which was a suit filed by one Lazar for specific performance of an agreement dated 24.4.89. Lazar, the appellant is the respondent in both the Civil Revision Petitions. Suit was decreed in favour of Lazar and therefore he can defend the orders passed in CRP. 1136/99 and CRP. 1158/99.

(2.) Plaint schedule properties belonged to the defendants in the suit. One room in the building in the property was in the possession of one Vasu and the remaining portion of the building is in the possession of the plaintiffs as tenants. On 24.4.89 defendants 1, 3 and 4 as the first party and the plaintiff as the 2nd party entered into an agreement for sale of the property to the plaintiff for a sum of Rs. 1,65,000/- and the plaintiff has paid a sum of Rs. 25,000/- towards advance. The time stipulated in the agreement was six months. As second defendant was not available for executing the agreement, defendants 1, 3 and 4 have undertaken that second defendant will also execute the assignment deed. As per the default clause in the agreement, if the plaintiff commits default, defendants are entitled to appropriate the advance paid towards damages and if the defendants commit default, plaintiff is entitled to get back the advance amount of Rs. 25,000/- and another sum of Rs.25,000/- towards damages. Plaintiff states that he was always willing to perform his part of the contract. Plaintiff's further case is that defendants 1, 3 and 5 have executed the agreement with the permission and as required by the 2nd defendant. Further, the plaintiff also stated that the second defendant had knowledge of the agreement and he had approved the same. Before the due date plaintiff sent a notice to the defendants in the name of 4th defendant on 20.10.89. Fourth defendant refused to accept the notice. Later defendants 1, 3 and 4 have colluded with Vasu and made him to file O. S.754/89 before the Sub Court, Thrissur and obtained an order of temporary injunction restraining the defendants from assigning the property to the plaintiff and restraining the plaintiff from purchasing the property. Plaintiff in this suit is the 5th respondent in that suit. We need not further elaborate the facts.

(3.) The suit was resisted by all the defendants. Joint written statement was filed by D1 and D4. They admitted that they have executed a karar in favour of the plaintiff. According to them, second defendant has no knowledge about the execution of the agreement and that second defendant was not present at the time of fixing the value of the property. They also denied the allegation that they had colluded with Vasu. Further it is also stated that plaintiff had no capacity to pay the balance consideration at that time and he was never ready to perform his part of the contract. Further they stated that since the property has already been assigned the plaintiff is not entitled to get any assignment deed executed in his favour. The claim for damages is also disputed. Third defendant was set ex pane. Second defendant filed written statement. So also defendants 7 and 8. The Sub Court on the basis of the pleadings of the parties raised five issues and after considering the oral and documentary evidence and the pleadings of the parties decreed the suit for specific performance and defendants 1 to 4 were directed to execute assignment deed in favour of the plaintiff. Further, the Court also held that the second defendant is also bound by Ext. A1 agreement. Aggrieved by the same defendants 2, 4 to 8 have come up with this appeal.