Madras High Court
Saradammal Alias Saradambal vs G.S.Srinath on 4 July, 2012
Bench: C.Nagappan, R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-7-2012 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE R.KARUPPIAH APPEAL SUIT No.849 of 2010 and M.P.No.1 of 2010 Saradammal alias Saradambal .. Appellant vs G.S.Srinath .. Respondent Appeal suit filed under Section 96 read with Order 41 Rules 1 & 2 of Code of Civil Procedure against the judgment and decree dated 20.9.2010 passed by the Principal District Judge, Tiruvallur, in O.S.No.77 of 2007. For Appellant : Mr.P.B.Sampathkumar For Respondent : Mr.S.Parthasarathy Senior Counsel for Mr.K.Goviganesan JUDGMENT
(Judgment of the Court was delivered by C.NAGAPPAN, J.) This appeal is preferred against the judgment and decree dated 20.9.2010 passed by the learned Principal District Judge, Tiruvallur, in O.S.No.77 of 2007. The defendant is the appellant herein. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the suit.
2.The plaintiff filed the suit seeking for a judgment and decree directing the defendant to execute a sale deed for a sum of Rs.54,25,200/- in favour of the plaintiff or his nominee in respect of the suit property as per agreement of sale executed by the defendant on 5.10.2004, after receiving the balance of sale consideration of Rs.42,25,000/- from the plaintiff, on her failure to do so, the Court to execute the sale deed in favour of the plaintiff on behalf of the defendant at the expense of the plaintiff and alternatively, to direct the defendant to refund the advance amount of Rs.12,00,000/- with 18% interest per annum from the date of agreement till the date of realisation and for costs.
3.Briefly, the case of the plaintiff is that the defendant is the owner of the suit property and after negotiation, the defendant agreed to sell the suit property to the plaintiff and on 5.10.2004, the defendant executed agreement of sale in favour of the plaintiff for a total sale consideration of Rs.54,25,200/- and on the date of suit agreement, the defendant received from the plaintiff a sum of Rs.12,00,000/- towards advance cum part sale consideration and also agreed to receive the balance sale price at the time of execution and registration of the sale deed and it is also stipulated that the plaintiff should get the sale deed registered within a period of three months from the date of agreement and the defendant put the plaintiff in possession of the suit property on 5.10.2004, under the agreement.
4.It is further stated by the plaintiff that the defendant agreed to have the suit property surveyed and measured and convince the plaintiff about the correctness of the extent and also obtain necessary Possession Certificate and pay the entire land revenue dues payable by her and produce the documents to the plaintiff before the period of three months. It is also averred in the plaint, that upon failure on the part of the defendant, the agreement provided for compulsory registration on remittance of balance of sale consideration.
5.According to the plaintiff, he has got enormous resources to pay the balance sale price and also to spend for the stamp duty, registration fees and other charges and the plaintiff has been ready and willing to complete the sale at all material times and without physically verifying the available area of land with the possession and ownership of the defendant and without furnishing the materials insisted and also undertaken by the defendant, the plaintiff could not proceed further with his part of obligation in getting the sale deed ready for registration or to pay the huge balance of sale consideration under the agreement. It is further stated by the plaintiff that the defendant did not take any steps either to engage a surveyor to measure the suit lands or to pay the arrears of land revenue and she created an obstacle in the progress and performance of obligation on the part of the plaintiff.
6.It is further stated in the plaint, that even prior to the expiry of three months' period, the plaintiff sent a letter dated 23.12.2004, addressed to the defendant requiring her to measure the lands and furnish the land revenue paid receipts so as to enable the plaintiff to proceed with the registration of sale deed and the defendant did not take any steps and even subsequently, the plaintiff has been continuously insisting the defendant to measure the lands and produce the receipts for payment of arrears of land revenue and there was inaction on the part of the defendant. It is further stated by the plaintiff that the defendant started negotiating with third parties to sell the suit property for higher price with ulterior motive to defraud the plaintiff and therefore, to safeguard the rights and interest of the plaintiff in respect of the agreement of sale dated 5.10.2004, he filed a suit in O.S.No.185 of 2006 on the file of District Munsif Court, Ponneri, for a permanent injunction restraining the defendant from alienating or encumbering the suit property covered under the agreement and also prayed for an interim injunction in I.A.No.870/2006 and the learned District Munsif granted ad-interim injunction on 3.8.2006, and the same has been informed to the defendant.
7.According to the plaintiff, he has made duly a declaration in the suit for permanent injunction, that he would file the suit for comprehensive relief of specific performance of the agreement of sale by a later date and the suit for injunction is pending disposal. It is further stated by the plaintiff that though the plaintiff has been ready and willing to perform his part of the contract, there was inaction and deliberate non-cooperation on the part of the defendant and hence the plaintiff has filed the present suit seeking for equitable relief of specific performance.
8.The defendant in her written statement, has stated that she is neither the real owner, nor she negotiated with the plaintiff to sell the suit property and the suit property is the property of her husband, who purchased it benami in her name, and the defendant did not agree to sell the property for a sale consideration of Rs.54,25,200/- as alleged in the plaint. According to the defendant, on 5.10.2004, the plaintiff along with two of the sons of the defendant and one Elumalai, the Village Administrative Officer, came to the defendant's house for the purchase of the suit property and at that time, the husband of the defendant was not in the house and the defendant informed the plaintiff as well as her sons that the agreement could be finalised after the return of her husband; but, the plaintiff brainwashed the defendant and took her signatures in the suit agreement and the defendant's sons have also taken away the entire advance amount paid by the plaintiff and the defendant out of fear, did not inform anything to her husband when he returned home.
9.It is further averred in the written statement, that the defendant never agreed to survey or measure the suit property or agreed to obtain the documents and surrender the same to the plaintiff. According to the defendant, if really the contention of the plaintiff is true, he ought to have filed the suit for specific performance even earlier and the suit filed by him in O.S.No.185/2006 before the District Munsif Court, Ponneri, would clearly disclose his financial capacity and she filed written statement in the said suit and thereafter, the plaintiff withdrew the suit and it was dismissed as such and the plaintiff has not approached the Court with clean hands and hence, he is not entitled to the equitable relief sought for.
10.It is also stated in the written statement, that the plaintiff has no resource and has no means to pay the balance of sale consideration and he has not come forward to perform his part of the contract and he did not send any notice to the defendant and has not chosen to file the suit for specific performance at the very first instance.
11.The defendant in her additional written statement, has stated that the plaintiff in his suit in O.S.No.185/2006, on the file of the District Munsif Court, Ponneri, has also filed an application in I.A.No.869/2006 under Order 2 Rule 3 of C.P.C. seeking permission to seek the relief now sought for in the present suit, by separate proceedings; but, the said application was dismissed on 2.3.2007, by the District Munsif, Ponneri and the plaintiff did not choose to prefer any appeal against that order. According to the defendant, under Order 2 Rule 2 of C.P.C., the plaintiff ought to have included all the claims in a single suit arising out of the same cause of action, unless he obtained the leave of the Court and here, the application to grant leave filed by the plaintiff, has already been dismissed and the plaintiff is deemed to have relinquished his right now sought for in the present suit and hence the present suit is not maintainable under Order 2 Rule 2 C.P.C.
12.The plaintiff filed reply statement stating that he filed an application in I.A.No.869/2006 in O.S.No.185/2006 on the file of the District Munsif Court, Ponneri, seeking leave under Order 2 Rule 3 of C.P.C. to file a separate suit for larger relief of specific performance of the agreement of sale and it is incorrect to state that the application in I.A.No.869/2006 was dismissed. According to the plaintiff, leave of the Court under Order 2 Rule 3 C.P.C. was granted and only thereafter, the said suit was numbered as O.S.No.185/2006 and there was also progress in the said suit.
13.It is also stated in the reply statement, that after the plaintiff filed the present suit seeking for the relief of specific performance, the earlier suit in O.S.No.185/2006 seeking for permanent injunction relief, became superfluous and hence it was withdrawn as not pressed and the learned District Munsif, Ponneri, dismissed the suit as not pressed and therefore, the present suit is not bad in law and cannot be rejected under Order 2 Rule 2 C.P.C.
14.The trial Court framed four issues and the plaintiff examined himself as P.W.1 and marked Exs.A1 to A7 on his side and the defendant examined herself as D.W.1 and marked Ex.B1 on her side. On a consideration of oral and documentary evidence, the trial Court held that the plaintiff is entitled to get the relief of specific performance of contract of sale and decreed the suit for the relief as sought for in the plaint. Challenging the said judgment and decree, the defendant has preferred the present appeal.
15.Originally, the plaintiff has sought for the prayer of specific performance of the sale agreement only. During the pendency of the appeal, the plaintiff took out a petition in M.P.No.1 of 2011 seeking for amendment of the plaint by incorporating the alternative prayer for refund of the advance amount of Rs.12,00,000/- with 18% interest per annum and after hearing both sides, this Court allowed the said petition on 10.1.2012, and the plaint came to be amended accordingly.
16.The points for determination in the appeal, are:
(1) Whether the plaintiff has proved that he was ready and willing to perform his part of the contract?
(2) Whether the present suit is barred under Order 2 Rule 2 C.P.C.?
(3) Whether the plaintiff is entitled to equitable relief of specific performance or the alternative relief of refund of advance amount?
17.POINT No.1: Learned Counsel appearing for the appellant/defendant, strenuously contended that the factum of readiness and willingness on the part of the plaintiff to perform his part of the contract is to be adjudged with reference to his conduct and the attending circumstances and the plaintiff has hopelessly failed and shown rather reluctance than readiness to perform his part of the contract and was at no time, ready with either money or resources to fulfill his part of the contract. In support of his submission, learned Counsel relied on the two decisions of the Supreme Court.
18.Per contra, learned Senior Counsel appearing for the respondent/plaintiff, submits that the plaintiff was always ready and willing to perform his part of the contract and he has sent Ex.A3 letter, dated 23.12.2004, well within the period of three months' time provided in the agreement for execution of the sale deed and the trial Court has rightly appreciated the same.
19.The Supreme Court in the decision in N.P.THIRUGNANAM BY LRs V. DR.R.JAGAN MOHAN RAO AND OTHERS (AIR 1996 SUPREME COURT 116), considered the scope of Section 16(c) of the Specific Relief Act and laid down thus:
"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short, the Act). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
20.Reiterating the ratio in the said decision, the Supreme Court in the subsequent decision in J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER ((2011) 1 SCC 429), has observed that Section 16(c) of the Act mandates readiness and willingness on the part of the plaintiff and it is a condition precedent for obtaining the relief of grant of specific performance and the onus is on the plaintiff and the distinction between the readiness and willingness is that the former refers to the financial capacity and the latter to the conduct of the plaintiff wanting performance and generally, readiness is backed by willingness and it has to be determined/ascertained from the conduct of the parties.
21.In the light of the above principle, let us consider as to whether the plaintiff has proved his readiness and willingness to perform his part of the contract in the present case.
22.In the plaint averments, the plaintiff has claimed that the defendant in the sale agreement, has agreed to have the suit land surveyed and measured and also pay the entire land revenue dues payable by her and produce the documents to the plaintiff before the period of three months stipulated for completion of the sale transaction and the plaintiff has also sent a letter dated 23.12.2004, addressed to the defendant requiring her to measure the lands and also furnish the land revenue paid receipts so as to enable the plaintiff to proceed with the registration of the sale deed. The defendant in her written statement, has specifically denied the issuance of letter dated 23.12.2004, and has further stated that the plaintiff never sent any notice calling upon the defendant to perform her part of the contract. Ex.A2 is the sale agreement dated 5.10.2004, entered into by the plaintiff with the defendant with regard to the suit property. Ex.A3 is the copy of the letter dated 23.12.2004, allegedly sent by the plaintiff to the defendant. There is no proof adduced by the plaintiff to show that Ex.A3 letter, was dispatched to the defendant. No acknowledgement is filed by the plaintiff evidencing the receipt of the said letter by the defendant. In short, there is nothing on record to show that Ex.A3 letter, ever reached the defendant. It is the case of the defendant that she did not receive Ex.A3 letter, at any point of time. In the plaint averments, nothing is stated about the dispatch of Ex.A3 letter. In the cross-examination, P.W.1, the plaintiff, has stated that he sent Ex.A3 letter, by certificate of posting. Even for that, no proof is adduced. Thus the plaintiff has failed to prove the dispatch of Ex.A3 letter, and the acknowledgement of its receipt by the defendant.
23.The plaintiff as P.W.1, in the cross-examination, has stated that he was ready with the balance of sale consideration within the stipulated period of three months and met the defendant and called upon her to execute the sale deed by receiving the balance of sale consideration; but, she did not do so. For better appreciation, the relevant portion of the testimony of P.W.1, the plaintiff, in the cross-examination, is extracted below:
"mf;hpbkd;l;oy; 3 khj fhyj;jpy; gzk; brYj;jp fpiuak; bra;J bfhs;s fz;Ls;sJ vd;why; rhpjhd;/ 3 khjj;jpw;F nky; ehd; gzk; fl;l jtwpdhy; ml;thd;!; bjhif ,He;J tplntz;Lk; vd;W fz;Ls;sJ vd;why; rhpjhd;/ ehd; jahuhf ,Ue;J mth; kWj;jhy; ehd; rl;l eltof;if nkw;bfhs;syhk; vd;Wk; fz;Ls;sJ vd;whYk; rhpjhd;/ ehd; mf;hpbkd;l;oy; fz;Ls;s tptug;go bjhif fl;l Kaw;rp nkw;bfhz;nld;/ ehd; buhf;fg; gzk; itj;Jf; bfhz;L ehd; mth;fis Tg;gpl mth;fs; tutpy;iy/ mf;hpbkd;l; nghl;l xU khjj;jpw;Fs; mth;fis Tg;gpl;nld;/ njjp "hgfkpy;iy/ tUfpnwd; vd;W brhy;yp mth;fs; tutpy;iy/ ,Jnghy; 4. 5 jlit mth;fis Tg;gpl;nld;/ me;j 4. 5 jlitfs; mf;hpbkd;l;oy; fz;Ls;s 3 khjj;jpw;Fs; Tg;gpl;nld;/ me;j njjpfs; Fwpg;gpl;L jw;nghJ vd;dhy; TwKoahJ/ mjw;F mth;fs; gjpy; vJt[k; brhy;ytpy;iy/ ehd; mjw;F mth;fSf;F xU byl;lh; mDg;gpndd;/ 23/12/2004/y; m/rh/M/3 mDg;gpndd;/ nkw;go m/rh/M/3/I mth;fSf;F ehd; mDg;gpndd; vd;gij fhl;l Mjhu Mtzk; vd;dhy; jhf;fy; bra;a Koa[k;/ rhd;wpl;l efy; K:yk; mDg;gp itj;njd;/ nkw;go m/rh/M/3/I ehd; mDg;gtpy;iy vd;Wk;. tHf;fpw;fhf ehdhf jahh; bra;J bfhz;nld; vd;why; rhpay;y/ ehd; mth;fis 4. 5 jlit nfl;l gpwF mth;fs; tuhjjhy; mjd; gpwF k/rh.M.3/I mDg;gp itj;njd;/ ehd; fpiuak; bra;a gpujpthjpfis 4. 5 jlit Tg;gpl;l tptuk; vJt[k; k/rh/M/3/y; ,y;iy vd;why; rhpjhd;/ nkw;go k/rh/M/3/y; epyj;ij mse;J bfhLf;f ntz;Lk;/ thp brYj;jtpy;iy mjdhy; eltof;if vLf;ff; nfhhp mDg;gp itj;njd; vd;why; rhp/ epyj;ij mse;J bfhLj;j gpwF jhd; tpf;fpiuak; bra;a ntz;Lk; vd;W mf;hpbkd;l;oy; fz;Ls;sjh vd;why; mt;thW mf;hpbkd;l;oy; Fwpg;gplg;gltpy;iy/ thpa[k; ghf;fpapy;yhky; brYj;jp xg;gilf;f ntz;Lk; vd;W ve;j c&uj;Jk; ,y;iy vd;why; rhp/ tpf;fpiuak; bra;a ve;j fhyj;jpYk; ehd; jahuhf ,y;iy vd;Wk;. fhyk; jhH;j;j ntz;Lk; vd;w fhuzj;jpw;fhf ehd; tHf;F jhf;fy; bra;Js;nsd; vd;why; rhpay;y/ ve;j trjpa[k; vdf;F ,y;iy vd;whYk; rhpay;y/ brhj;J RthjPdk; xg;gilj;jjhf mf;hpbkd;l;oy; fhzg;gltpy;iy vd;why; rhpjhd;/ jtwhd mog;gilapy; ehd; brhj;ij xg;gilj;Jtpl;lhh;fs; vd;W tHf;F jhf;fy; bra;Js;nsd; vd;why; rhpay;y/ 3 khjk; Koe;jt[ld; clnd ehd; jdpg;gl;l Kiwapnyh. tHf;fwp"h; K:ynkh ehd; eltof;if vJt[k; vGj;J K:yk; vLf;ftpy;iy vd;why; rhp/ tHf;F nghLtjw;F Kd; ehd; ve;j mwptpg;g[k; bfhLf;ftpy;iy vd;why; vdf;F "hgfkpy;iy/ mf;hpbkd;l;oy; nfhhpa[s;sgo ehd; jahuhf ,y;yhjjhy; ehd; bjhLj;Js;s ,e;j tHf;F epiyf;fj;jf;fjy;y vd;why; rhpay;y/"
24.Though the plaintiff has claimed in his testimony, that he called upon the defendant 4 or 5 times to execute the sale deed after receiving the balance of sale consideration, he cannot specifically state as to the dates, on which such a demand was made by him to the defendant. At this juncture, it is relevant to point out that even in the alleged Ex.A3 letter, there is no such averment stating that the plaintiff called upon the defendant 4 or 5 times in this regard. In such circumstances, the claim made by the plaintiff with regard to the demand made by him, cannot be accepted. On the other hand, the plaintiff himself in the further cross-examination, has admitted that on the completion of three months stipulated period, he did not either by himself or through advocate take any step in writing to get the sale deed executed as evident from his testimony extracted above.
25.The specific case of the plaintiff is that the defendant put the plaintiff in possession of the suit property on 5.10.2004, under the agreement. There is no averment found in Ex.A2 sale agreement, pertaining to the handing over possession of the suit property by the defendant to the plaintiff under the agreement. The plaintiff in his cross-examination, has also admitted the same. There is no proof adduced by the plaintiff to show that he was put in possession of the suit property pursuant to the sale agreement. Learned Senior Counsel appearing for the respondent, also fairly submits that the possession of the suit property was not handed over to the plaintiff as averred in the plaint. The testimony of the plaintiff in the cross-examination, which was extracted above, would clearly show that the plaintiff was rather reluctant than willing to perform his part of the contract and was at no time, ready with either money or resources to fulfill his part of the contract.
26.It is the submission of the learned Counsel appearing for the appellant, that Ex.A2 sale agreement, provides for compulsory registration in the event of failure on the part of the defendant to execute the sale deed after receiving the balance of sale consideration and if really the plaintiff was ready and willing and the defendant refused to perform her part of the contract, the plaintiff invoking the said Clause, could have approached the Court by depositing the balance of sale consideration and made a request for execution of the sale deed by the Court; but, he has not done so. This submission is well founded. Though such a right and privilege was available to the plaintiff in the terms of Ex.A2 agreement of sale, he has not exercised the said right, which would only show reluctance on his part. In the circumstances stated above, we have to conclude that the plaintiff has not proved that he was ready and willing to perform the essential terms of the contract, which are to be performed by him. The trial Court, though failed to frame an issue as to whether the plaintiff was ready and willing to perform his part of the contract, has considered the above aspect; but, its conclusion in this regard, is not based on proper appreciation of oral and documentary evidence and is erroneous. Point No.1 is determined accordingly.
27.POINT No.2: Admittedly, the plaintiff has earlier filed a suit in O.S.No.185/2006 on the file of District Munsif Court, Ponneri seeking for permanent injunction restraining the defendant from alienating or encumbering the suit property, which is the subject matter of the agreement of sale in the present suit and when the suit was pending, he has filed the present suit seeking for equitable relief of specific performance of the sale agreement. Learned Counsel appearing for the appellant, submits that both the suits refer to the same set of facts and obligations and also proceed on the footing of Clauses in Ex.A2 agreement of sale, and therefore, the present suit is barred under Order 2 Rule 2 C.P.C. Learned Senior Counsel appearing for the respondent, submits that the earlier suit is only for bare injunction and the present suit is a comprehensive one and it is not barred under Order 2 Rule 2 C.P.C.
28.We perused the pleadings in both the suits. Ex.A4 is the plaint filed in O.S.No.185/2006 and Ex.A6 is the written statement filed in the said suit and Ex.A5 is the counter filed in the interlocutory application in I.A.No.870/2006 in the said suit. We find that the material averments in both the plaints, including causes of action stated, are verbatim the same and while filing the suit in O.S.No.185/2006, the plaintiff has omitted to sue in respect of the relief for specific performance. The Supreme Court in the decision in N.V.SRINIVASA MURTHY AND OTHERS V. MARIYAMMA BY PROPOSED Lrs AND OTHERS (AIR 2005 SUPREME COURT 2897), has considered the scope of Order 2 Rule 2 C.P.C. and observed thus:
"13.In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted Original Suit No.557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil Court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in Original Civil Suit No.557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure."
29.The ratio in the above decision, was followed by the Division Bench of this Court in BAFNA DEVELOPERS V. D.K.NATARAJAN AND OTHERS (2010 (5) CTC 423) and it held that the test should be whether the cause of action seeking for the relief of specific performance, was available to the plaintiff in the earlier suit filed by him, and if the answer is in the affirmative, the subsequent suit seeking for specific performance, is barred under Order 2 Rule 2 C.P.C. To the said effect, there is another decision of the Division Bench of this Court in N.RAVINDRAN V. V.RAMACHANDRAN (2011 (3) CTC 153).
30.In the present case also, we are of the considered view that the relief of specific performance ought to have been claimed by the plaintiff in the first suit filed by him in O.S.No.185/2006. Though the plaintiff has claimed in the reply statement, that he obtained leave of the Court for filing a comprehensive suit for specific performance, he has not substantiated the same by producing the order of the Court granting such leave. It is also relevant to point out that the date of order granting leave, is not mentioned in the reply statement. In such circumstances, we are of the considered view that the present suit seeking for the relief of specific performance, is apparently barred by Order 2 Rule 2 of Code of Civil Procedure. Point No.2 is determined accordingly.
31.POINT No.3: We have already held that the plaintiff has not proved that he was ready and willing to perform his part of the contract, and he has failed to discharge the burden as mandated under Section 16(c) of the Specific Relief Act and hence he is not entitled to the relief of grant of specific performance. We have also held that the present suit is barred under Order 2 Rule 2 of C.P.C. and hence the plaintiff is not entitled to any relief including the alternative relief, in the present suit. The point is determined accordingly. The findings of the trial Court are perverse and its judgment and decree are liable to be set aside.
32.In the result, this appeal is allowed and the judgment and decree of the trial Court in O.S.No.77/2007 are set aside and the Original Suit in O.S.No.77/2007 on the file of the Principal District Court, Tiruvallur, is dismissed. However, in the facts and circumstances of the case, the parties are to bear their respective costs both in the appeal as well as in the suit. Consequently, connected MP is closed.
(C.N.,J.) (R.K.,J.) 4-7-2012 Index: yes Internet: yes nsv To:
The Principal District Judge Tiruvallur.
C.NAGAPPAN, J.
AND R.KARUPPIAH, J.
nsv A.S.No.849 of 2010 Dt: 4-7-2012