K MANICKAM Vs. R PALANISAMY

JUDGEMENT

(1.) THE defendant in O.S.No.54 of 1986, Subordinate Judge's Court, Erode, is the petitioner in the civil revision petition as well as the appellant in the civil miscellaneous appeal, directed against the order in I.A.No.232 of 1992 in A.S.No.193 of 1990, Additional District Judge's Court, Erode and in A.S.No.193 of 1990, respectively. For the sake of convenience, the reference to the parties, in the course of this judgment, shall be according to their array in the suit. Briefly stated, the circumstances giving rise to these proceedings are as follows: On 7.4.1980, a house bearing door No.259, Periyar Nagar, Erode Town, was allotted to the defendant by the Tamil Nadu Housing Board, under a lease-cum-sale agreement on an initial deposit of Rs.5,900 and the defendant agreed to pay the balance in monthly instalments, besides the service charges to the housing board. THE defendant entered into an agreement of sale on 1.2.1983 with the plaintiff, whereunder it was agreed to execute a registered sale deed in favour of the plaintiff for Rs.58,000, after receiving a sum of Rs.15,000 as advance, towards part payment of the sale price and agreeing further, to pay the future instalments and service charges to the Housing Board and to execute a sale deed after receiving the balance of sale consideration in a sum of Rs.43,000. In part performance of the agreement, the plaintiff was put in possession of the house and at the request of the defendant, the plaintiff paid a sum of Rs.1,835.50 to the Housing Board through the defendant, who handed over the receipt for the payment and agreed to adjust that amount also towards the balance of sale consideration of Rs.43,000. THE plaintiff thus claimed to have paid Rs. 16,835.50 towards part of the sale price of Rs.58,000. Since, according to the plaintiff, the defendant had been delaying to clear the balance amount due to the Housing Board, the plaintiff issued a notice on 23.4.1985 expressing his readiness and willingness to pay the balance of the sale price and take a registered sale deed. But, this, according to the plaintiff, did not evoke any response. Subsequently, enquiries were made by the plaintiff at the Tamil Nadu Housing Board and it was learnt that the defendant had not paid the balance of the sale price and the value of the land payable was pending adjudication and under those circumstances, the defendant, according to the plaintiff, was unable to execute a registered sale deed in favour of the plaintiff, which led to the cancellation of the agreement by the plaintiff by means of a registered notice dated 28.1.1986, whereunder, a demand for the refund of Rs. 16,835.50 was also made which, however, was not paid by the defendant. In O.S.No.54 of 1986 instituted by the plaintiff, he prayed for the recovery of the sum of Rs. 16,835.50 from the defendant together with interest and costs.

(2.) IN the written statement filed by the defendant, while accepting the allotment of the house bearing door No.259, by the Tamil Nadu Housing Board, on 7.4.1980 and the entering into an agreement for the sale of the house to the plaintiff on 1.2.1983 and the receipt of a sum of Rs. 15,000 by way of advance and the handing over of possession of the property to the plaintiff in part performance of the agreement, he denied the payment of Rs.1,835.50 by the plaintiff and stated that the plaintiff did not make any payment at all to the Housing Board on behalf of the defendant. Claiming that he had been paying the monthly instalments, the defendant questioned the readiness and willingness of the plaintiff to perform his part of the contract and stated that the plaintiff never tendered the balance of sale consideration and called for the execution of the sale deed and that was owing to non-availability of requisite funds with the plaintiff. IN addition it was also stated that the land value awaited adjudication by court and the plaintiff has necessarily to wait till the dispute was settled and the plaintiff cannot unilaterallly rescind the agreement and seek to recover, the advance. The suit was also characterized as premature. Referring to the occupation of the house by the plaintiff, the defendant stated that the house was capable of fetching a monthly rental of not less than Rs.450 and he had thus sustained a loss at that rate per month from 1.2.1983 and that he is entitled to deduct that amount in case he is called upon to refund the advance. Ultimately, the defendant prayed for the dismissal of the suit.

(3.) THE learned Additional District Judge, Erode, placing reliance upon an unreported judgment of this Court in M.Karuppiah v. A.Chinnaswami Gounder, C.K.P.Nos.3877 and 4316 of 1981, dated 5.10.1982, allowed the amendment of the plaint as prayed for by the plaintiff. Consequently, he allowed A.S.No.193 of 1990 and remitted the suit for fresh disposal. THE correctness of the orders allowing the amendment of the plaint and remanding the suit, is questioned in the civil revision and the appeal respectively.