SHAHIDUNISSA Vs. MUTHALIFF

JUDGEMENT

(1.) THIS revision is directed against the order dated 30. 1. 2002, made in I. A. No. 723/1999 in O. S. No. 235/1999 by the Principal district Munsif, Salem, dismissing the petition filed under Or. 22 R. 4 CPC, declining to implead the legal representatives of the deceased Defendant/abdul lathif Noori. The Plaintiff is the Revision Petitioner.

(2.) PLAINTIFF has filed the suit for Specific Performance. Case of the PLAINTIFF is that the Defendant entered into an oral agreement of sale of vacant site - suit property in Alagapurampudur within the Salem Corporation Limit in S. No. 164/3. Oral Agreement was entered into on 16. 01. 1993. Sale price was fixed at Rs. 13 ,21 6 / -. Oral Agreement was concluded in the presence of one Balusami Naidu and one Visvanathan. According to the PLAINTIFF, she has paid an advance of Rs. 5000/-, by way of Cheque dated 30. 01. 1993, drawn on Salem District Cooperative Central Bank, Cherry Road . PLAINTIFF and the Defendant have further agreed that the Sale Deed should be taken at an early possible date on the payment of balance of sale consideration of Rs. 8,216/ -. The PLAINTIFF was always ready and willing to perform her part of the contract. She has been requesting the Defendant to execute the Sale Deed in her favour; but the Defendant was evading to execute the Sale Deed. On 31. 01. 1997, the Defendant met the PLAINTIFF and her husband and assured to execute the Sale Deed, after receiving the balance of sale consideration. Since the Defendant failed to keep up his word, the PLAINTIFF had issued a Legal notice on 21. 02. 1998, which was acknowledged by the Defendant. Since the defendant had not executed the Sale Deed as agreed by him, the PLAINTIFF has filed the suit for Specific Performance of contract.

(3.) UPON consideration of the contention of both sides, impugned order and other materials on record, the following points arise for consideration in this revision :- (i)Whether the petition filed under Or. 22 R. 4 CPC to implead the legal representatives of the Defendant (who was already dead prior to the filing of the suit) is maintainable ? (ii)Whether the impugned order declining to implead the legal representatives of the deceased Defendant suffers from material irregularity, warranting interference?