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Kannuperumal And Anr. vs Suseela, Mentally Retarded Person, ... on 17 May, 2004 cites

Mukesh Kumar And Ors vs Col. Harbans Waraich And Ors on 27 October, 1999

12. There is no force in the argument advanced as such by the learned counsel for the respondents 1 to 3/defendants 1 to 3 since, the plaintiffs have filed the suit for specific performance of agreement of sale claiming that the defendants 1 to 3 executed the sale agreement dated 20.3.1995 in favour of the plaintiffs 1 to 4, who are brothers, agreeing to convey the suit property for Rs. 1,20,000 and also received a sum of Rs. 20,000 as advance at the time of agreement of sale and to execute the sale deed after receiving the balance of sale consideration of Rs. 1,00,000 within five months. The plaintiffs 1 to 4 also filed the suit on 3.4.1995. After the stiff resistance made by the defendants 1 to 3 in their written statement, the parties went on trial and the first plaintiff also examined as P.W. 1 on the side of the plaintiffs, who has spoken the case of the plaintiffs with regard to the suit agreement and also marked Ex.A-3, the fixed deposit receipt, as per which the plaintiffs 1 to 4 deposited a sum of Rs. 1,00,000 towards balance sale consideration in the State Bank of India, Tidivanam and thereafter, after examination of D.W.1 on the side of the defendants 1 to 3 and since D.W.2 examined in part was not available for further cross-examination and when the suit was posted for further examination of witnesses on the side of the defendants 1 to 3, the plaintiffs 1 and 3 informed the Court through the first plaintiff that they are not willing to continue the suit and sought permission to withdraw the amount deposited towards balance of sale consideration, which made the counsel, who appeared for the plaintiffs 1 to 4, to withdraw the vakalath. Thereafter, the petition I.A. No. 353 of 2003, subject matter of this revision has been filed to transpose the plaintiffs 1 and 3 as defendants 4 and 5. Though the said petition was opposed by the plaintiffs 1 and 3 in the counter filed in I.A. No. 353 of 2003, that since previously there was dispute between the plaintiffs 1 to 4 in dividing the properties in which connection there was also a partition suit and therefore, if the suit is decreed for specific performance, there will be unnecessary complication in dividing the suit property and they did not choose to appear in this revision and to contest. Therefore, the only contention raised by the respondents 1 to 3/defendants 1 to 3 is that inasmuch as it was alleged that the agreement was executed by the defendants 1 to 3 in favour of the plaintiffs 1 to 4, the suit cannot be decreed in part for specific performance favouring the plaintiffs 2 and 4 and as such, the suit has to be withdrawn. The position is settled by the judgment of this Court in Ponnuswami Gounder v. Boyan and Ors., (cited supra) and also by the dictum rendered by the Hon'ble Supreme Court in Mukesh Kumar v. Col Harbans Waraiah, (cited supra) that in such case, the remaining plaintiffs are entitled to a decree for specific performance. It follows, the plaintiffs 1 and 3, who are not supporting the case of the plaintiffs 2 and 4 and after the first plaintiff was examined as P.W.1 supporting the case of the plaintiffs and also admitted all those facts in the counter filed in I.A. No. 353 of 2003, subject matter of this revision, have to be transposed as defendants 4 and 5 for effective and complete adjudication to settle all the questions involved in the suit. Inasmuch as already the plaintiffs 1 and 3 joining hands of the plaintiffs 2 and 4 have filed the suit for specific performance and also went on with trial by examining the first plaintiff as P.W.1, who deposed supporting the case of the plaintiffs and they also marked the fixed deposit receipt Ex.A-3 and they have not chosen to withdraw the suit, the plaintiffs 2 and 4 are entitled to continue the suit for specific performance in respect of the plaintiffs, viz., plaintiffs 2 and 4, by transposing the plaintiffs 1 and 3 as defendants 4 and 5. In case the plaintiffs 1 and 3 seek to withdraw the money deposited by them, it is open to the plaintiffs 2 and 4 to proceed with the trial of the suit for specific performance and for decree by paying the entire sale consideration. With that view, the order of the trial Court in refusing to transpose the plaintiffs 1 and 3 as defendants 4 and 5 being improper and erroneous is liable to be set aside.
Supreme Court of India Cites 6 - Cited by 14 - Full Document

Ponnuswami Gounder vs Rama Boyan And Ors. on 24 April, 1978

12. There is no force in the argument advanced as such by the learned counsel for the respondents 1 to 3/defendants 1 to 3 since, the plaintiffs have filed the suit for specific performance of agreement of sale claiming that the defendants 1 to 3 executed the sale agreement dated 20.3.1995 in favour of the plaintiffs 1 to 4, who are brothers, agreeing to convey the suit property for Rs. 1,20,000 and also received a sum of Rs. 20,000 as advance at the time of agreement of sale and to execute the sale deed after receiving the balance of sale consideration of Rs. 1,00,000 within five months. The plaintiffs 1 to 4 also filed the suit on 3.4.1995. After the stiff resistance made by the defendants 1 to 3 in their written statement, the parties went on trial and the first plaintiff also examined as P.W. 1 on the side of the plaintiffs, who has spoken the case of the plaintiffs with regard to the suit agreement and also marked Ex.A-3, the fixed deposit receipt, as per which the plaintiffs 1 to 4 deposited a sum of Rs. 1,00,000 towards balance sale consideration in the State Bank of India, Tidivanam and thereafter, after examination of D.W.1 on the side of the defendants 1 to 3 and since D.W.2 examined in part was not available for further cross-examination and when the suit was posted for further examination of witnesses on the side of the defendants 1 to 3, the plaintiffs 1 and 3 informed the Court through the first plaintiff that they are not willing to continue the suit and sought permission to withdraw the amount deposited towards balance of sale consideration, which made the counsel, who appeared for the plaintiffs 1 to 4, to withdraw the vakalath. Thereafter, the petition I.A. No. 353 of 2003, subject matter of this revision has been filed to transpose the plaintiffs 1 and 3 as defendants 4 and 5. Though the said petition was opposed by the plaintiffs 1 and 3 in the counter filed in I.A. No. 353 of 2003, that since previously there was dispute between the plaintiffs 1 to 4 in dividing the properties in which connection there was also a partition suit and therefore, if the suit is decreed for specific performance, there will be unnecessary complication in dividing the suit property and they did not choose to appear in this revision and to contest. Therefore, the only contention raised by the respondents 1 to 3/defendants 1 to 3 is that inasmuch as it was alleged that the agreement was executed by the defendants 1 to 3 in favour of the plaintiffs 1 to 4, the suit cannot be decreed in part for specific performance favouring the plaintiffs 2 and 4 and as such, the suit has to be withdrawn. The position is settled by the judgment of this Court in Ponnuswami Gounder v. Boyan and Ors., (cited supra) and also by the dictum rendered by the Hon'ble Supreme Court in Mukesh Kumar v. Col Harbans Waraiah, (cited supra) that in such case, the remaining plaintiffs are entitled to a decree for specific performance. It follows, the plaintiffs 1 and 3, who are not supporting the case of the plaintiffs 2 and 4 and after the first plaintiff was examined as P.W.1 supporting the case of the plaintiffs and also admitted all those facts in the counter filed in I.A. No. 353 of 2003, subject matter of this revision, have to be transposed as defendants 4 and 5 for effective and complete adjudication to settle all the questions involved in the suit. Inasmuch as already the plaintiffs 1 and 3 joining hands of the plaintiffs 2 and 4 have filed the suit for specific performance and also went on with trial by examining the first plaintiff as P.W.1, who deposed supporting the case of the plaintiffs and they also marked the fixed deposit receipt Ex.A-3 and they have not chosen to withdraw the suit, the plaintiffs 2 and 4 are entitled to continue the suit for specific performance in respect of the plaintiffs, viz., plaintiffs 2 and 4, by transposing the plaintiffs 1 and 3 as defendants 4 and 5. In case the plaintiffs 1 and 3 seek to withdraw the money deposited by them, it is open to the plaintiffs 2 and 4 to proceed with the trial of the suit for specific performance and for decree by paying the entire sale consideration. With that view, the order of the trial Court in refusing to transpose the plaintiffs 1 and 3 as defendants 4 and 5 being improper and erroneous is liable to be set aside.
Madras High Court Cites 7 - Cited by 5 - V Ramaswami - Full Document
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