GOTHI SESHARATNAMMA Vs. KADIYALA NARASIMHAMURTHY

JUDGEMENT

(1.) .This revision is directed against the Judgment and decree of the learned Subordinate Judge, Vijayawada in Small Cause Suit No. 129 of 1963. The suit was filed to recover a sum of Rs. 1,200 with interest at 6 per cent, per annum. The plaintiff's case was that it was part payment of the sale price in respect of an agreement to sell a site in Vijayawada, dated 10th July, 1961 executed by the defendant in favour of the plaintiff. The sale price was fixed at Rs. 2,300 subject to a mortgage which the defendant agreed to redeem. The plaintiff's case is that he was bound to pay the balance of Rs. 1,100 only after the mortgage was redeemed, but that was not done, and that the defendant committed breach of the contract. The plaintiff prayed for a decree for Rs. 1,200 with interest. The suit was resisted on several grounds. The learned Subordinate Judge framed the following points for determination : " 1. Whether the defendant committed any breach of contract as alleged by plaintiff ?

(2.) . Whether the suit is maintainable as small cause suit and this Court hay jurisdiction to try it as small cause suit ?

(3.) Whether the plaintiff is entitled to interest as claimed by him ?" On the second point, the learned Judge found that the suit did not lie on the small cause side and that the Small Cause Court had no jurisdiction to try the suit. On the first point, he held the plaintiff committed breach of the contract. On the third point, he held that the plaintiff was not entitled to claim interest. In view of the findings that the defendant had not committed breach of the contract and the suit did not lie on the small cause side he dismissed the suit. Sri Suryanarayana Murty, the learned Counsel for the petitioner, contends that the suit for recovery of part of the purchase money paid under an agreement to sell lies on the small cause side, and that the view taken by the trial Court is wrong. The legal position in this regard is very well settled by a number of decisions. Reference may be made to the decision in Sundara Thevan v. Ananthan Kaladi A.I.R. 1924 Mad. 903 which was followed in Duairam v. Thakur Prasad A.I.R. 1926 Nag. 65 and Raghitnath Das v. Chingan A.I.R. 1929 All. 62. Those cases are authority for the position that even where a plaintiff vendee alleges that the vendor committed breach of the contract to sell, his remedy is not merely to sue for specific performance, but he could also rescind the contract and sue for recovery of the purchase money paid by him and that such a suit would lie on the small cause side. On the strength of these decisions, I hold that the suit for recovery of the purchase money paid in part by the plaintiff would lie on the small cause side. The next question that arises for consideration is whether the sum of Rs. 1,200 represents the part of the price, or earnest money. Further even if it is held that it is not earnest money but only a part of the price whether the plaintiff has to forego that amount, if he committed breach of the contract. Unfortunately on these aspects, the case was not properly presented, nor considered in a satisfactory manner. The only finding given by the Subordinate Judge was that it is not the defendant, but the plaintiff that committed breach of the contract, the correctness of which is attacked. Further that finding does not dispose of the question as the Subordinate Judge assumed. Even granting that the plaintiff committed breach of the contract, the defendant had to establish that, the defendant suffered loss or damage thereby and it is only that amount that could be deducted out of Rs. 1,200 and there should be a decree for the balance. On this aspect there is no clear pleading nor finding on evidence. In these circumstances I direct the subordinate Judge to entertain the suit on the small cause side, and remand the suit for fresh disposal. Both the parties will be given an opportunity to file additional pleadings. The points for determination arising therefrom would be framed by the learned Subordinate Judge and after giving an opportunity to both the parties to adduce evidence, oral and documentary, he will dispose of the suit in accordance with law, in the light of the above observations. Costs of this revision petition will abide the result. K.N.R. Revision allowed remanded.