The court affirmed that specific performance is discretionary and requires the plaintiff to prove continuous readiness and willingness to perform, alongside the existence of a valid agreement.

JUDGMENT :

C.PRATHEEP KUMAR, J.

The plaintiff in O.S.45 of 2010 on the file of the Sub Court, Nedumangad is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court).

2. The plaintiff filed this suit for specific performance of an agreement for sale dated 13.2.2008, along with an alternative prayer for return of advance. According to the plaintiff, on 13.2.2008, he had entered into an agreement for sale with the defendant and thereby the defendant agreed to sell the plaint schedule property having an extent of 13 cents for Rs.75,000/- per cent. As per the terms of the agreement, an advance amount of Rs.25,000/- was given to the defendant and the period stipulated for the performance was four months. As per the terms of the agreement, the defendant had to convince the extent of the property after measurement and also encumbrance-free title to the plaintiff. Since the defendant failed to perform the contract in spite of demand and the defendant tried to alienate the said property, the plaintiff filed a suit as O.S.119/2008 before the Munsiff's court, Attingal and obtained an injunction against the defendant. Though notice dated 3.6.2008 and 9.6.2008 were issued demanding specific performance, the defendant failed to perform the contract and hence the suit.

3. The defendant filed a written statement contending that consequent to the death of her husband on 10.3.2001, she was undergoing treatment at various hospitals including Santhigiri asramam, General hospital, Thiruvananthapuram and Medical college hospital. Due to financial constraints she borrowed a sum of Rs.25,000/- from the plaintiff after affixing her signature on two stamp papers worth Rs.50/- and blank papers and they were given to the defendant. She had no intention to sell the plaint schedule property. She had not executed any document in favour of the plaintiff agreeing to sell the plaint schedule property. The defendant conducted the marriage of her daughters agreeing to give shares from the scheduled properties. Three buildings are there in the plaint schedule property and the said property is worth Rs.2,00,000/- per cent during the year 2008. If the scheduled property is disposed of, the defendant and her children will be thrown out to the street. Therefore, she prayed for dismissing the suit.

4. The trial court framed five issues. The evidence in the case consists of the oral testimonies of PWs1 to 5, DW1 and Exts.A1 to A6. After evaluating the evidence on record, the trial court declined the prayer for specific performance, but decreed the alternate relief of refund of advance amount of Rs.25,000/- along with interest at the rate of 18% per annum from the date of the agreement till the date of the decree and thereafter, at the rate of 6% per annum, till realization with costs. Dissatisfied with the above judgment and decree of the trial court, the plaintiff preferred this appeal.

5. Now the points that arise for consideration are the following :

1) Whether the defendant agreed to sell the plaint schedule property to the plaintiff ?

2. Whether the plaintiff was always ready and willing to perform his part of the contract ?

3. Whether the suit is barred under Order II Rule 2 CPC ?

4. Whether the plaintiff is entitled to get a decree for specific performance as prayed for ?

6. Heard Smt.Ligey Antony, the learned counsel for the app