T THANGAMUTHU Vs. A GOWRISHANKER

JUDGEMENT

(1.) THIS is a small cause revision. The plaintiff in this case filed a suit for recovery of Rs. 500 from the defendant. The claim related to the refund of advance paid by the plaintiff to the defendant under a written agreement for the purchase of a house-site in a lay-out. Under the terms of the agreement, the defendant undertook to obtain the sanction of the concerned municipal authorities for the lay-out. The plaintiff pleaded that while he was always ready and willing to pay the balance of the price for the house-site, the defendant had failed and neglected even to obtain the sanction for the lay-out. The suit was accordingly laid for the refuud of the advance since, according to the plaintiff , the defendant had committed breach of the agreement.

(2.) THE defendant resisted the suit. He raised in the forefront, an objection to the maintainability of the suit. He contended that the suit, as laid, was for specific performance of a contract and hence barred under Entry 15 of the Schedule to the Provincial Small Causes Courts act, 1887. Trying this issue as a preliminary issue, the Court held that the plaintiff's suit was not a suit for specific performance of the agreement for sale, as contended for by the defendant. This finding is questioned by the defendant in this revision.

(3.) ON behalf of the plaintiff, however, Miss. Bahkul a , appearing as amicus curiae, urged that although the plaintiff did not actually rescind the agreement, yet by the mere act of filing the suit for return of the advance he must be treated as having elected to put an end to the agreement. ON this basis she urged that the suit cannot be regarded as one for specific performance.