Cognizance of the suit cannot be taken.

V. Balasubrahmanyan, J.

1. This is a small cause revision. The plaintiff in this case filed a suit for recovery of Rs. 500 from the defendant. The claim related to the refund of advance paid by the plaintiff to the defendant under a written agreement for the purchase of a house-site in a layout. Under the terms of the agreement, the defendant undertook to obtain the sanction of the concerned municipal authorities for the lay-out. The plaintiff pleaded that while he was always ready and willing to pay the balance of the price for the house-site, the defendant had failed and neglected even to obtain the sanction for the lay-out. The suit was accordingly laid for the refund of the advance since, according to the plaintiff, the defendant had committed breach of the agreement.

2. The defendant resisted the suit. He raised in the forefront, an objection to the maintainability of the suit. He contended that the suit, as laid, was for specific performance of a contract and hence barred under Entry 15 of the Schedule to the Provincial Small Causes Courts Act, 1887. Trying this issue as a preliminary issue, the Court held that the plaintiff's suit was not a suit for specific performance of the agreement for sale, as contended for by the defendant. This finding is questioned by the defendant in this revision.

3. Section 15(1) of the Provincial Small Cause Courts Act read with Entry 15 of the Schedule to the Act bars from the cognisance of a Small Cause Court in the mofussil any suit for specific performance or for rescission of a contract.

4. A contract can be said to be concluded only when there is mutuality and consensus between the parties. Likewise there cannot be rescission of a contract unless it is preceded by breach of contract by the other party. It is a settled principle of contract law that where a party commits a breach of contract, the other party has a choice of two things to do : he can either ignore the breach and perform his part of the contract; or he can react to the breach by rescinding the contract. Rescission of contract has accordingly been described by an English writer, very pithily, as "acceptance of a repudiation". Rescission following the repudiation of the contract by the other party, thus puts an end to the contract. Both parties, in such cases, go back on the contract, using their reverse gears, as it were.

5. Our contract law recognise the right of a party to file a regular suit, even for rescission of contract. But the condition precedent for rescission either by suit or otherwise is the preceding breach committed by the other party. Section 39 of our Contract Act lays down that when a party to a contract has refused to perform his promise in its entirety, the promisee may put an end to the contract unless he has signified, by words or conduct, his acquiescence in its continuance. Section 27 of the Specific Relief Act, 1963, enacts that any person interested may sue for rescission of a contract, where it is voidable for terminable by him.

6. Mr. Subramaniam, learned Counsel who argued this revision for the defendant, conceded that the suit in the present case is not a suit based on an earlier act of rescission by the plaintiff. He however, maintained that the suit is one for specific performance of the agreement of sale, and as such, it is barred under the other limb of Entry 15 of the Second Schedule to the Provincial Small Causes Courts Act. He relied on the averments in the plaint to make good this contention. He referred, particularly, to the following averment in the plaint, which, according to him showed that the plaintiff was all the while affirming the agreement and was seeking his remedy only within its four corners:

The plaintiff is having ready cash with him from the inception of the agreement till this moment with a view to pay the balance of the sale price and to have the sale deed executed by the defendant through the owners.

The contention of Mr. Subramanian, seems to me to be quite tenable. T