Refusal of specific performance of contract on the ground of making false averment in the plaint.

Abdul Hadi, J.:

This appeal by the plaintiff is against the dismissal of his suit O.S.No.1710 1979 on the file of the I Additional Subordinate Judge, Erode, praying for specific performance of the sale agreement dated 8.11.1978 by respondents 1 to 11 defendants 11 and for possession thereof or in the alternative for specific performance of the agreement by respondents 1 to 9 by executing a sale deed over their 5/6th share in the properties and for receiving proportionate consideration and for partition and separate possession of the said 5/6th share.

2. The allegations made in the plaint may be summarised as follows: The abovesaid property was allotted to one Aziz Khan by order dated 27.11.1969 in L.P.A.No.72 of 1965. On death, his heirs under Muslim Law, viz., respondents 1 to 11 inherited the said property. While so, on 8.11.1978, respondents 1 to 11 entered into an agreement with the plaintiff sale of the said property to him at the rate of Rs.20 per square foot of the ground area the said property and received a sum of Rs.2,000, as advance. The said agreement provided that respondents should obtain certified copies of the orders of the various proceedings, culminating in the above said letters patent appeal at their cost and furnish same to the appellant within 3 months from 8.11.1978 and within 60 days thereafter respondents should execute the sale deed in favour of the appellant and receive the balance sale price. Though respondents 10 and 11 were present at the of the negotiations preceding the agreement, they were not available to sign the agreement by the time the agreement could be formally reduced to writing on stamp papers happened to reside at Madras and Podanur respectively and had gone away promising sign the agreement later on. On the undertaking and assurance of respondents 1 to 9 respondents 10 and 11 to execute the agreement and the sale deed, respondents took Rs.1,000 from the appellant on 9.11.1978 as further advance. Though respondents and 11 have not signed in the agreement, they are also bound by the terms agreement as they were also parties to the same. Respondents 1 to 11 did not furnish above referred to certified copies even after a lapse of three months and inspite of demands by the appellant. So, the appellant himself obtained the said copies expenses. The appellant has always been ready and willing to take a sale deed, paying balance price. But the respondents 1 to 11 have set up their father’s brother, the respondent to issue a notice on 14.5.1979 to the appellant and respondents 1 to 11 a share in the suit property and challenging respondents 1 to 11 to enter into the above agreement. The said notice was given at the instigation of respondents 1 to 11 to thwart appellant as the value of the property had gone up very much since the date of agreement. The appellant issued a notice on 30.11.1979 to the respondents, offering to perform of the obligations and demanding the performance of the agreement by respondents further offering that in the event of respondents 10 and 11 refusing to execute the sale as undertaken taking advantage of the absence of their signatures in the agreement, appellant was willing to take the sale deed in respect of the share of respondents alone in the suit property and pay the proportionate price therefor. The said notice served on respondents 1, 2, 4 and 6 to 11. The appellant understands that respondents 11 have entered into another sale agreement relating to the suit property with respondents 13 and 14, who have notice of the earlier agreement dated 8.11.1978.

3. Respondents 10 to 14 remained absent and hence were set ex parte.

4. The allegations in the original written statement of the 1st defendant-1st respondent dated 11.8.1980, which is adopted by defendants 2 to 9 (respondents 2 to 9), summarised as follows: The averment that on 8.11.1978 respondents 1 to 11 entered an agreement with the appellant, is not true. It is only defendants 1 to 9 who had int