1. Being dissatisfied with the judgment and decree dated 12.04.2006 and made in O.S.No.17 of 2004 on the file of the Learned District Judge Nilgiris at Udhagamandalam, the first defendant has come forward with this appeal after invoking the proviso to Section 96 of CPC.

2. The facts which are absolutely necessary for the disposal of this appeal may be summarised as under.

3. The legal character of the parties to the suit need not be changed and may be as it is in the suit.

4. That on 10.04.1997, the first defendant who is the appellant herein had entered into an agreement for sale of the suit property with the second defendant. She had received a sum of Rs.3 lakhs by cash on the date of agreement and further a sum of Rs.3 lakhs by way of a post dated cheque drawn on Canara Bank Aruvankadu bearing No.840871 dated 02.05.1997 towards advance of sale consideration. The time for execution of the sale deed and payment of balance of sale consideration was fixed on 25.08.1997. The sale shall be in favour of the purchaser or his nominee.

5. At the time of agreement the plaintiff was the tenant in the suit property under the first defendant. In the meanwhile, the second defendant had received a sum of Rs.6 lakhs from the plaintiff and assigned his rights under the suit agreement in his favour. The plaintiff had therefore, stepped into the shoes of the second defendant under the same terms and the first defendant is aware of this fact and she had also consented to the assignment. The nominee clause comes fairly and squarely into operation in any event and therefore the first defendant is bound to sell the suit property to the plaintiff. The plaintiff had always been ready and willing to pay the balance of sale price and to perform his part of contract.

6. The assignment was reduced into writing in October 1996 and the second defendant had addressed to the first defendant about the assignment and he had no objection to the sale being made over in favour of the plaintiff. In the second week of June 1997, the first defendant had attempted to forcibly evict the plaintiff and the plaintiff had also sent a notice on 18.06.1997 calling upon her not to alienate the property to anyone else. In view of the agreement there is no question of payment of any rent.

7. The plaintiff had also filed a suit for injunction on the file of the Learned District Munsif of Coonoor, against the first defendant in O.S.No.141 of 1997 restraining eviction except by due process of law. The first defendant had filed a petition for eviction against the plaintiff in RCOP.No.33 of 1997 on the file of the Rent Controller of Coonoor and along with that petition she had also filed a petition in I.A.No.116 of 1998 under Section 11(1), 11(3) and 11(4) of the Tamil Nadu Buildings Lease and Rent Control Act for payment of rent and that petition was dismissed by the Rent Controller. The first defendant had also not appealed against the said order.

8. The suit agreement is in force and the time is not the essence of contract. In an event, the development of assignments in the proceedings of the court clearly show that the time is not the essence of contract. Since the agreement mentions 25th August 1997, for the payment of balance and since the legal proceedings had intervened, the plaintiff had issued a legal notice dated 10.08.2000 to the defendant calling for the performance of the suit agreement. Since the agreement stipulates that the date of payment of balance is 25.08.1997, the plaintiff had filed the suit before 25th August, 2000 and hence the suit is well within the time and not barred by the Law of Limitation. The plaintiff is ready to pay the balance of sale price of Rs.11 lakhs and to perform his part of contract and to finalise the sale deed in his name. He has also prayed for the alternative relief as per the Specific Relief Act.

9. The first defendant has contended in her written statement that the suit is speculative and it is an abuse of process of the C