ORDER: The unsuccessful plaintiff before the lower appellate Court has filed this second appeal.

2. The plaintiff filed a suit in O.S. No.279 of 1986 on the file of the Sub Court, Madurai for specific performance of the agreement dated 29.10.1985 marked as Ex.A-9.

3. The plaintiff was a partnership firm running its business as a lessee in door No.12, Sambanthamoorthy Street, Madurai town. The said building belongs to the defendant. In the month of October, 1985 the defendant expressed his idea of demolishing and reconstructing the entire building leased out to the plaintiff. The defendant agreed that the plaintiff could continue as a tenant as before and he can also vacate only a portion of the building and continue to occupy the rest of the portion till the surrendered portion is reconstructed. The plaintiff would state that he has agreed for the same. To that effect an agreement was executed on 29.10.1985. As per the agreement the defendant agreed to lease out a total extent of 1326 sq.ft. to him in the new building and the plaintiff was allowed to carry on his business in rear portion of the building for the purpose of constructing the cellar portion. The defendant also had agreed to proceed with the construction of the back portion of the building after putting the plaintiff in possession of the front portion and the cellar portion. It is the case of the plaintiff that he temporarily shifted the business to door No.44 West Masi Street, Madurai and stored the goods in the back portion of the building. Though he was ready and willing to perform his part of the contract, the defendant has not done his part and he was going on constructing the other portions of the building without constructing the cellar portion which was agreed to be leased out to the plaintiff. According to him, the defendant did not complete the construction in two months as agreed and he was attempting to lease out the building to third parties. On the basis of the above pleadings the plaintiff has filed the present suit.

4. The defendant resisted the suit stating that the agreement is not specifically enforceable and there is no concluded and binding contract between the parties. The defendant had denied the contention of the plaintiff that he had neglected to construct the portion mentioned in the agreement. It is the specific case of the defendant that he was not able to construct the cellar portion as per the plan. If the plaintiff’s request had to be complied with by providing cellar portion as per the original plan, the entire construction should have to be pulled down to the ground level to oblige the plaintiff. It is also the specific case of the defendant that the agreement had to be construed only as a promise and cannot be specifically enforced and it is impossible for the defendant to construct the cellar portion as per the original plan. On the basis of the abovesaid pleadings, he prayed that the suit has to be dismissed.

5. The trial Court decreed that suit as prayed for. So the defendant filed appeal in A.S. No.51 of 1987 on the file of the District Court, Madurai. The learned District Judge allowed the appeal by setting aside the judgment and decree of the trial Court and dismissed the suit. Hence, this second appeal.

6. Pending second appeal, the managing partner Jagadeesan died and the other partner Maran executed a release deed in favour of one Inbam, another partner. He also died pending second appeal. So, his legal representatives have been brought on record. As on date the plaintiff- partnership firm has become a proprietary concern of Inbam, in view of the release deed executed by the said Maran.

7. The substantial question of law that was framed for consideration in this second appeal is:

“Whether the Court below is right in holding that the suit agreement is not enforceable?”

8. Though originally the plaintiff- partnership firm filed the present suit, the managing partner Jagadeesan died and the other partners Inbam and Maran carried on t

Click Here to Read the rest of this document