A suit for refund of earnest money paid under a contract for sale of immovable property is triable by a Small Cause Court only if the plaintiff alleges that the contract was cancelled due to the defendant's breach and seeks recovery of the earnest money, not if the plaintiff seeks to enforce the specific performance of the contract or its rescission.

( 1 ) THIS revision has been filed u/s 25 of Provincial Small Cause Courts Act, 1887, against judgment dt. 17-1-73 by which it is held that the suit is not triable by Small Cause Court.

( 2 ) THE material facts of the case are that on 20-7-71, plaintiff-petitioner and defendant respondent entered into an agreement for purchase of an immovable property mentioned in the agreement. The sale price as agreed was Rs. 17,500. 00 out of which Rs. 500. 00 were paid in cash by the petitioners to the respondent as earnest money at the time of the agreement and the balance amount of Rs. 17,000. 00 was to be paid at the time of registration by 30th July, 1971. Clause (4) of the Contract provides that in case the vendor does not perform his part of the contract then on the expiry of the stipulated period it would be open to the vendee to cancel the contract for sale of the property and enforce the same through a court of law. On the other hand, the vendor was entitled to forfeit all the amount of the earnest money if the vendee did not pay the balance amount of the consideration and have registration in his name by the stipulated time.

( 3 ) IT is the common case of the parties that the contract of sale has not been fulfilled, On 6th October, 1972, the petitioners instituted a suit, giving rise to this revision petition, claiming a decree for Rs. 500. 00 by way of refund of the earnest money on the allegation that the contract of sale of the immovable property had fallen through on the false promises of the defendant respondent. It was averred in the plaint that at the time of agreement, the respondent had assured the petitioners that the said property was free from all encumberances and he undertook to show to the petitioners the necessary title deeds etc. In paragraph 3 of the plaint it is further stated that on this assurance the petitioners had paid Rs. 500. 00 to the respondent by way of earnest money at the time of the agreement on 20-7-1971. It is next stated that till 28th July, 1971. the respondent had put off the petitioners on one pretext or the other and evaded to show the original title deeds of the ownership of the said property In paragraph 5 of the plaint it is stated that on 28-7-1971 the petitioners served the respondent with a legal notice and further extended two days time over and above the stipulated period for showing them the said title deeds etc. but the respondent evaded the service of the same and failed to comply with the terms of the agreement. In paragraph 6 it is stated that the petitioners came to know that the respondent had mortgaged the property in question with some person of Ghaziabad and had pledged the title deeds with him. It is thus stated that due to the lapses and false promises of the respondent the agreement dated 20. 7. 71 fell through which rendered the respondent liable to return the earnest money along with damages, and face criminal proceedings under section 420 Indian Penal Code for obtaining money on false assurances. With regard to criminal action U/s 420 Indian Penal Code against the respondent, the petitioners alleged that they would take action later on. In this way the petitioners only claimed payment of Rs. 500. 00 by way of refund of earnest money paid by them.

( 4 ) THE suit was contested and the respondent raised a plea that the suit was not triable by the Small Cause Court and was barred by Articles (11) and (15) of the Second Schedule to the Act. Following the authority of the Allahabad High Court in Raghunath Das V. Chigan (A. I. R. 1929 Allahabad 62) the court below upheld the plea of the respondent that the suit was not triable by the Small Cause Court and returned the plaint for presentation to the proper Court.

( 5 ) THE learned counsel for the petitioners has challenged the said finding of the court as being contrary to law. I have heard the learned counsels for the parties.

( 6 ) BY virtue of Section 15 of the provincial Small Cause Courts Act, a Court of Smal