The main legal point established in the judgment is that the relief of specific performance must be within the scope of the main suit and not barred by limitation.

JUDGMENT

(Prayer: Original Side Appeal filed under Clause 15 of Letters Patent r/w. Order XXXVI Rule 9 of the Original Side Rules, against the order and decreetal order in Appl.No.6126 of 2016 in C.S.No.364 of 2003 dated 01.03.2017.

A.S.No.370 of 2017:

First Appeal filed under Section 96 of the Civil Procedure, against the judgment and decree dated 22.11.2016 passed in O.S.No.29 of 2011 on the file of the learned III-Additional District Judge, Thiruvallur at Poonamallee.)

Subramanian, J.

1. This appeal is at the instance of the plaintiff in C.S.No.364 of 2003, a suit for recovery of damages from the defendants 1 to 5 and 7 to 10. The damages have been claimed under various heads and the finer details may not be required at this juncture.

2. The facts that led to filing of the suit in C.S.No.364 of 2003 are as follows:-

2.1. One Krishnapillai owned vast extent of properties in and around Chennai. One such property is measuring about 16.48 grounds in Survey No.38/1, No.81, Porur Village, Tiruvallur District. A suit was filed by the 6th respondent herein in C.S.No.78 of 1978 seeking partition and separate possession of his ½ share in the suit properties, contending that the properties are ancestral properties. The said suit was however, withdrawn subsequently with leave to file a fresh suit. Thereafter, the 6th respondent herein filed a suit in C.S.No.73 of 1981 seeking partition and separate possession of his ½ share in the property measuring 16.48 grounds as well as the other properties.

2.2. During the pendency of the suit, the defendants in the said suit, who are the legal representatives of the other son of Krishnapillai namely, Loganathan sold the entirety of the property to one East Land Manufacturing Company, a partnership firm. The suit in C.S.No.73 of 1981 ended in compromise final decree on 02.01.1989. Under the said compromise, an extent of 8.24 grounds out of 16.48 grounds was allotted to the 6th respondent herein. After the said final decree came to be passed on 02.01.1989, the appellant herein purchased the entire extent of 16.48 grounds from the East Land Manufacturing Company on 21.07.1989.

3. The appellant herein as a subsequent purchaser resisted the execution proceedings pursuant to the final decree by filing various execution applications. The fact that those applications were dismissed and the orders there on were confirmed by this Court is not disputed. In E.P.No.78 of 1997, the Executing Court in fact, ordered delivery on 16.08.2002. Thereafter, the appellant entered into a sale agreement with the 6th respondent, agreeing to purchase the 8.24 grounds that was allotted to the 6th respondent under the final decree in C.S. 73 of 1981 for a total consideration of Rs.64,00,000/-. He paid an advance of Rs.4,00,000/-. It was agreed that the sale should be completed by 16.07.2003.

4. After having entered into the agreement, the appellant filed a suit in C.S.No.364 of 2003 as aforesaid seeking damages from the other defendants. Though the 6th respondent was impleaded as 6th defendant in the suit, no relief was sought for against him. The appellant issued a notice to the 6th respondent on 15.07.2003, pointing out that the suit in C.S.No.855 of 1994 filed by the sister of the 6th respondent namely, one Loganayaki for partition of her 1/9th share and for setting aside the preliminary decree and final decree in C.S.No.73 of 1981 is pending and the 6th respondent, who is a party to the suit had supressed the pendency of the said suit. He would therefore, seek the 6th respondent to extend the time for execution of sale deed pursuant to the agreement dated 26.02.2003 till disposal of the suit in C.S.No.855 of 1994.

5. The 6th respondent sent a reply stating that he had informed the appellant of the pendency of the suit even before the agreement. He has also stated that the appellant can withhold the 1/9th of the sale consideration and take a sale deed and 1/9th of the sale consideration could be p