PAULRAJ Vs. ANTONY DEVA SAHAYAM

JUDGEMENT

(1.) The Civil Revision Petition is filed against the fair and decreetal order dated 25.01.2016 passed in I.A. No. 82 of 2015 in A.S. No. 97 of 2014 on the file of Principal Subordinate Court, Nagercoil. The revision petitioner is the plaintiff in O.S. No. 142 of 2011 and appellant in A.S. No. 97 of 2014. The respondent is the defendant in both the suit.

(2.) According to the petitioner, the respondent agreed to sell the property for a total sale consideration of Rs. 22,00,000/- and received a sum of Rs. 4,90,000/- and Rs. 10,000/- as advance, by way of cheque dated 10.06.2008 and 24.06.2008 respectively and executed the agreement of sale on 03.07.2008. Subsequently, on various dates he received balance sale consideration of Rs. 17,00,000/-. Even though the petitioner was ready and willing to execute the sale deed, the respondent did not execute the sale deed, even after receiving balance sale consideration of Rs. 17,00,000/-. The petitioner filed a suit for injunction. The respondent denied the execution of agreement of sale and receipt of subsequent payment as alleged by the petitioner. After trial, the suit was dismissed and thereafter, the petitioner filed A.S. No. 97 of 2014. While the appeal is pending, the petitioner filed I.A. No. 82 of 2015 for permission to withdraw the earlier suit filed for injunction and to file a fresh suit for specific performance of agreement of sale dated 03.07.2008 on the same cause of action. The respondent filed counter affidavit and opposed the same. The learned Judge considering the facts and circumstances and materials on record dismissed the application. Against that order, the present revision is filed.

(3.) The learned counsel for the petitioner submitted that the learned Judge ought to have seen that the suit was dismissed for technical defect on the ground that the petitioner did not file suit for specific performance and filed suit only for permanent injunction. The learned Judge failed to see that the respondent admitted having received the advance amount and execution of sale agreement. The learned Judge failed to see that the petitioner wants to file a comprehensive suit for specific performance of agreement of sale.