M. CHINNAIYAH Vs. NAINA MOHAMMED

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order dated 4.4.2012 in unnumbered OS.No./2012 in Cr.19 No. 4630 by the learned Subordinate Judge, Devakottai, Sivagangai District, rejecting the plaint at the threshold. The Petitioner/Plaintiff has filed the above suit for specific performance of the sale agreement dated 25.12.2009. In the plaint, it has been averred that the 1st Defendant has given a loan of Rs. 5,00,000/- to the 2nd Defendant and her husband Bakir Mohammed in the year 1989, but they were not able to repay the said loan with interest and thereafter, they orally agreed that the loan should be repaid with interest after selling the properties belonging to the 2nd Defendant and based on that said oral agreement, the 2nd Defendant executed a General Power of Attorney on 2.4.1990 in favour of the 1st Defendant. Though the 1st Defendant tried to sell the property of the 2nd Defendant in order to realise the loan, since there was no better offer, they decided to wait till the property of the 2nd Defendant gets best offer. Thereafter, some parts of the properties of the 2nd Defendant were sold and amounts realised from the same were paid to the 1st Defendant towards the principal and interest and thus, a sum of Rs. 2,12,000/- was paid till the year 2005. Thereafter, the Plaintiff and the 1st Defendant fixed a sum of Rs. 3,00,000/- as total sale consideration for the remaining properties in the panchayat. Based on that, a sum of Rs. 2,96,000/- as advance was paid by the Plaintiff to the 2nd Defendant, pursuant to which, the Plaintiff was in put in possession of the suit property. After adjusting the said amount, a sum of Rs. 4,00,000/- was agreed to be the balance principal amount with interest to be paid by the 2nd Defendant. For the said sum of Rs. 4,00,000/-, the 2nd Defendant and her husband also executed a promissory note. Though several demands made by the Plaintiff, neither the Defendants have come forward to repay the said amount nor to execute the sale deed and hence, the suit has been filed for specific performance of the said sale agreement.

(2.) The Trial Court has rejected the plaint on the following grounds:-

(3.) The learned counsel for the Petitioner would submit that the Trial Court has gone into merits of the case and erroneously rejected the plaint without even numbering the same on the ground that the averments stated in the plaint have not been substantiated by any documentary evidence and the reasons assigned by the Trial Court for rejecting the plaint can be gone into at the time of trial only and hence, the impugned order is illegal and liable to be set aside.