Application to transpose outgoing plaintiffs as defendants allowed.

The plaintiff 2 and 4 in O.S.No.72 of 1995 on the file of the Additional Sub Court, Tindivanam are the revision petitioners. The revision is directed against the dismissal of I.A.No.353 of 2003 filed by the revision petitioners under Order I, Rule 10 C.P.C. to transpose the plaintiffs 1 and 3 as defendants 4 and 5 in the suit. The petition was dismissed on 18.2.2004.

2. The revision petitioners along with the respondents 4 and 5 herein filed the suit against the defendants 1 to 3, viz., the respondents 1 to 3 herein for specific performance of the agreement of sale dated 20.3.1995 and in the alternative to refund the advance amount of Rs.20,000/- with interest at 18%. The first defendant is the mother and the defendants 2 and 3 are her sons. The first defendant got the suit properties allotted to her share in the partition between her and her sisters. The agreement of sale was entered into between the plaintiffs 1 to 4 and the defendants 1 to 3 on 20.3.1995 for sale of the suit properties by the defendants 1 to 3 for Rs.1,20,000/- and accordingly Rs.20,000/- was paid by way of advance on the day of agreement of sale. The defendants 1 to 3 is to execute the sale deed within five months, i.e., before 20.8.1995. The plaintiffs always ready and willing to perform their contract. Since the defendants are delaying to execute the sale deed in favour of the plaintiffs, the suit was filed on 3.4.1995 and the plaint was amended as per order in I.A.No.204 of 2002 dated 15.4.2002 appointing guardian to the first defendant, her husband and next friend since a certificate has been issued by the Home for Mentally Disabled(kdey fhg;gfk;) that the first defendant is a mentally retarded person.

3. The suit was resisted in the written statement filed by the third defendant on 20.4.1995 denying the agreement of sale said to have been executed by the defendants 1 to 3 and further stating that the said agreement of sale has been forged. It is further stated that inasmuch as the first defendant is a mentally retarded person, the agreement of sale executed by her is invalid and not binding.

4. The plaintiffs 2 and 4 filed I.A.No.353 of 2003 on 23.7.2003 stating in the affidavit that during trial of the suit their brother, the first plaintiff was examined as P.W.1, and cross-examined by the defendants 1 to 3. It is further stated that the balance of sale price amount for the suit agreement has been deposited by the plaintiffs 1 and 3 in the fixed deposit in the State Bank of India, Tindivanam and the fixed deposit receipt has also been marked as Ex.A-3 through P.W.1, the first plaintiff and the amount has been deposited by all the plaintiffs and as such, the amount has not been deposited in the fixed deposit exclusively by the plaintiffs 1 and 3.

5. On the side of the defendants 1 to 3, after examination of D.W.1, since the witness D.W.2 examined in part was not further examined and when it was posted for further examination of witness on the side of the defendants on 22.7.2003, P.W.1 Jayaraman appeared in Court and informed that he is not willing to continue the suit and also requested for refund of the amount deposited. Though the fourth plaintiff also came to the Court, he did not come inside the Court and therefore, the counsel for the plaintiffs has withdrawn the vakalath. The plaintiffs 2 and 4, viz., the revision petitioners appeared and took time till 25.7.2003 and filed petition I.A.No.353 of 2003 on 23.7.2003, subject matter of this revision to transpose the plaintiffs 1 and 3 as defendants 4 and 5 in the suit.

6. The petition I.A.No.353 of 2004 was opposed in the counter filed by the second defendant that the petition is filed only to delay the suit proceedings and further stating that inasmuch as the plaintiffs 1 and 3 are not supporting the revision petitioners/plaintiffs 2 and 4, the petition to transpose the plaintiffs 1 and 3 as the defendants 4 and 5 will not lie and the plaintiffs 2 and 4 have to withdraw the suit.

7. In the