IMPORTANT POINT
A plaintiff seeking specific performance must prove the genuineness of the contract and demonstrate readiness and capacity to pay the balance consideration.

JUDGMENT :

(A. Badharudeen, J.)

This Regular First Appeal is at the instance of the plaintiff in O.S.No.442/2005 on the files of the Additional Sub Court, North Paravur. The appellant assails decree and judgment in the above case, dated 10.12.2008.

2. Heard the learned counsel for the appellant/plaintiff as well as the learned counsel appearing for the respondent Nos.1 and 2/defendant Nos.1 and 2, in detail. Perused the verdict under challenge and the records of the trial court.

3. The parties in this appeal shall be referred as 'plaintiff' and 'defendants' for brevity and convenience, hereafter.

4. The plaintiff filed the present suit to declare sale deed No.3423/2005 as null and void and also sought performance of contract, dated 27.9.2001, alleged to be executed by the 1st defendant in favour of the plaintiff to sell the plaint schedule property for a total consideration of Rs.3 Lakh on accepting Rs.25,000/-(Rupees Twenty Five Thousand only) as advance sale consideration. According to the plaintiff, the original agreement was lost and a copy of the same was let in evidence.

5. Defendant Nos.1 and 2 filed written statements. Others did not file written statement. The contention raised by defendant Nos.1 and 2 as extracted in paragraph No.4 of the trial court judgment reads as under:

4. The suit is not maintainable either in law or on facts. Plaintiff and her father are simultaneously prosecuting cases for specific performance in two courts respect of the very same schedule property. But O.S.No.65/2003 of Munsiff Court, Aluva was dismissed. Secondly father sought for the restoration of the same. The original of the suit document is not produced. It is with the plaintiff. After relinquishing all the rights arising out of alleged agreement at the fag-end the plaintiff has approached the court with unclean hands and it is frivolous allegations. The alleged karar dated 27-9-2001 was returned to the first defendant years back and there is no subsisting karar between the plaintiff and the first defendant in respect of plaint schedule property which has been sold to the second defendant years back. Plaintiff has come to the court only with a photo copy of the agreement. This is only to help the third defendant, her father who is still prosecuting O.S.No.65/2003 before the Munsiff's Court, plaintiff and her sister, 4th defendant had already received back the advance amount. Therefore there is no necessity for any readiness and willingness in respect of the agreement which is not existing. Defendant has never requested on 5-9-2002 and 29-2-2002 or any other subsequent dates to do any act of measurement or any other things. Plaintiff was unmarried on those days and she was residing with her father. The third defendant who had another litigation with another concocted karar. Such karar was not in existence so as to be acted upon. Plaintiff has married only recently and as such she is well aware of the details of O.S.No.65/2003. The contention that plaintiff gave the agreement on undertaking that after taking photo copy it would be returned is a false contention. The date of karar is 27-9-2001. It is quite unbelievable that the plaintiff kept silence till now though the karar in original was with the first defendant. The karar was never sought to be returned to the plaintiff and all the allegations in this para is wilfully made to create a case. Such a karar is not inexistence. So it cannot be complied with. Second defendant is not attempting to sell it. The property is in the exclusive possession and enjoyment of the second defendant and nobody other than second defendant is having right, title and possession in the schedule property. The sale effected in between the first and second defendant is genuine and it binds all. The sale deed is not liable to be declared null and void. There is no cause of action or right of action for the plaintiff. The reliefs sought are only to be disallowed. So the suit may be dismissed with costs of the def