T G PONGIANNAN Vs. K M NATARAJAN

JUDGEMENT

(1.) (This second appeal is filed against the judgement and decree dated 30.6.2008 passed in A.S.No,30 of 2008 by the Additional District Court/Fast Track Court No.IV, Bhavani, reversing the judgement and decree dated 30.11.2007 passed by the Sub Court, Bhavani, in O.S.No,246 of 2000.) This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 30.6.2008 passed in A.S.No,30 of 2008 by the Additional District Court/Fast Track Court No.IV, Bhavani, reversing the judgement and decree dated 30.11.2007 passed by the Sub Court, Bhavani, in O.S.No,246 of 2000, which was filed for specific performance of the agreement to sell. For the sake of convenience, the parties are referred to here under according to their litigative status before the trial Court.

(2.) A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus: The appellant/plaintiff filed the suit O.S.No.246 of 2000 of before the Subordinate Judge, Bhavani, seeking specific performance of the agreement to sell, which was decreed. However, the first appellate Court reversed the judgement and decree of the trial Court for specific performance, by allowing the first appeal A.S.No,30 of 2008, but by ordering refund of the amount paid by the plaintiff to the defendants with interest.

(3.) THE learned counsel for the plaintiff would submit that even though there is no prayer alternis visibus for refund of the amount paid by the plaintiff to the defendants, the first appellate Court, on its own accord, ordered refund, without even creating charge over the suit property the defendants, who entered into a registered agreement to sell with the plaintiff, cannot, as per Sections 91 and 92 of the Indian Evidence Act, veer round and take pleas quite antithetical to what they committed themselves in black and white by having a volte face absolutely there is no indication, as per their own plea, that they paid interest for the alleged loan amount the appellate Court, on improbabilities, assuming as though there are probabilities, reversed the reasoned judgement of the trial Court and accordingly prayed for setting aside the judgement and decree of the first appellate Court.