IMPORTANT POINT
In a suit for specific performance conduct of plaintiff should be seen.

G. Rajasuria, J.—This appeal is focused at the instance of the defendant as against the judgment and decree dated 31.7.2006 passed by the learned II-Additional Judge, City Civil Court, Chennai in O.S.No.5300 of 2005, which was filed by the plaintiff seeking specific performance of an agreement to sell.

2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.

3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this appeal would run thus:

(a) The respondent/plaintiff herein filed the suit seeking the following reliefs:

to direct the defendant to specifically perform the agreement of sale dated 26.10.1993 entered between the plaintiff and the defendant in respect of the suit property, by receiving the balance sale consideration from the plaintiff and direct the defendant to execute the sale deed in favour of the plaintiff or his nominee and to do all acts necessary to complete the sale and in case of his failure to execute the sale deed this court may execute the sale deed in favour of the plaintiff. for a permanent injunction against the defendant or his men or agents from alienating the suit properties to any third parties. for costs (extracted as such) on the main ground that Ex.A1 the agreement to sell emerged between the plaintiff and the defendant, whereby the latter agreed to sell in favour of the former, a total extent of 1.37 acres of land in two survey Nos., viz., 40 and 53 and an advance amount of Rs.50,000 was paid by the plaintiff to the defendant. The period of performance was 11 months. Subsequently, the defendant made several endorsements on Ex.A1 on the plaintiff making part payments ranging between 19.3.1995 and 11.3.2001. The defendant also made additionally one endorsement clandestinely on 11.3.2001 itself conveying the fact that his brothers had filed a suit for partition covering the suit property as well as other joint family properties and also expressing his inability in this regard to proceed further as per Ex.A1. Thereafter there were exchange of notices between the plaintiff and the defendant. Ultimately the plaintiff filed the suit for specific performance seeking the aforesaid reliefs.

(b) Challenging and impugning the averments/allegations in the plaint, the defendant filed the written statement, the pith and marrow of it would run thus:

The suit was barred by limitation.

The prayer for partial specific performance of the agreement to sell was not tenable.

The plaint itself was not properly framed and filed and there is prevarication between the original plaint and the clean copy of the plaint.

There were laches on the part of the plaintiff in seeking specific performance, which connote and denote that the plaintiff was not ready and willing to perform his part of the contract.

Accordingly, the defendant prayed for the dismissal of the suit.

(c) The trial court framed the relevant issues.

(d) During trial, the plaintiff, examined himself as PW1 and marked Exs.A1 to A9. The defendant, examined himself as DW1 along with DW2 and marked Exs.B1 to B13.

(e) Ultimately, the trial court decreed the suit granting specific performance.

4. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the defendant has preferred this appeal on various grounds.

5. The learned senior counsel for the appellant/defendant placing reliance on the grounds of appeal, would put forth and set forth her arguments, which could pithily and precisely be set out thus:

(i) A mere comparison of the original plaint with the clean copy of it would display and demonstrate that the original suit was for getting specific performance of the agreement to sell relating to an extent of 58 cents only in Survey No.53, even though Ex.A1 did not refer to any two separate extents. Unilaterally the plaintiff did choose to seek specific performance of a part