( 1 ) THIS is a revision under Section 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 6-5-1978, passed by the Fourth additional District Judge, Gwalior who is invested with Small Cause Courts powers, in case No. 24 of 1976, Small Cause Suit.

( 2 ) THE facts of the case are that one Ram Swarup, who is now dead, was the plaintiff. He filed a suit against the defendant in the Court of Small Causes, gwalior, for refund of earnest money of Rs. 500/- along with the interest thereon at the rate of 1 per cent per month, amounting to Rs. 183/ -. In all, he claimed Rs. 683/ -.

( 3 ) THE plaintiffs claim was that the applicant (defendant) entered into a eon-tract of sale of the house located at Morar on 12-1-1968, for Rupees 20,000/ only and obtained Rs. 500/- from the plaintiff as earnest money and executed an agreement of sale in his favour. The defendant promised to execute the sale-deed by 31-3-1968. The defendant, however, is avoiding the sale. While in the meantime, it was discovered by the plaintiff that one Kesrimal has put his lock on one of the inner rooms, which is in the property to be sold to the plaintiff. Seeing this that the possession of the whole of the property will not be given to the plaintiff a notice was issued by the plaintiff to the defendant on 183-1968 to come to him and decide the matter regarding the possession and execute a registered sale-deed. The plaintiff also insisted that the possession should be handed over to him. The defendant replied by notice dated 20-31968 but he did not execute the sale-deed as agreed. After this, one more notice was given to the defendant, but he kept silent. As to the inner room on which somebody else's lock was there, the defendant stated that this room is already in the tenancy of the plaintiff from the beginning and as such, there is no question of handing over possession of that room to the plaintiff. On these facts, the plaintiff alleged in the plaint that as the defendant has committed a breach of contract, the plaintiff is entitled to refund of his earnest money along with interest which amounted to Rs. 683/- in all.

( 4 ) TO these plaint allegations, the defendant replied that one house belonging to the defendant including that of Raghuraj Singh, Jagdish Singh, Laxman Narain singh and Dinesh Kumar was located at Morar which consisted of two shops and out of which one shop consists of one shop and one room therein. The plaintiff is the tenant of these two rooms. Not only the outer room is in the tenancy of the plaintiff, but the inner room and outer room together are tenanted to the plaintiff (who) did not want to purchase the house as agreed and, therefore, he has made out a false theory of a lock put by one Kesrimal on the inner room. As the plaintiff has not paid the money as agreed upon, the earnest money with the defendant is forfeited and as such, the plaintiff is not entitled to refund of the said money and also for the interest. On the contrary, the defendant had to transfer the property for Rs. 8,000/- to one Ashok Kumar and he has suffered a loss of Rs. 12,000/ -. Further, the defendant submitted that he was always ready and willing to perform his part of the contract and it is the plaintiff who did not get the sale-deed registered by or up to the 31st march, 1968 and as such, the suit of the plaintiff is false and it should be dismissed.

( 5 ) THE trial court after taking evidence, came to the conclusion that the defendant was not in a position to hand over possession of the property which was agreed to be sold and that one Kesrimal was in possession of one room as alleged by the plaintiff and, therefore, decreed the suit of the plaintiff, holding that the amount of Rs. 500/- cannot be kept by the defendant and it cannot be forfeited as submitted by the defendant and he should return the amount to the plaintiff along with interest. Against that decree and judgment, this revision is filed.

( 6 ) THE first sub