BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ORDER RESERVED : 25.01.2022 ORDER PRONOUNCED : 01.02.2022 CORAM :

THE HONOURABLE MS.JUSTICE P.T.ASHA C.R.P.(MD) No.1877 of 2017 and C.M.P.(MD) No.9778 of 2017 Kasthuri ... Petitioner vs.

R.Hemalatha ... Respondent PRAYER:- This Petition is filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 04.04.2017 made in I.A.No.159 of 2017 in O.S.No.199 of 2014 on the file of the learned 3^rd Additional District Judge, Trichy.

For Petitioner : Mr.Raguvaran Gopalan For Respondent : Mr.H.Lakshmi Shankar

ORDER

The plaintiff, who is the revision petitioner before this Court, is challenging the order passed by the learned 3^rd Additional District Judge, Trichy in I.A.No.159 of 2017 in O.S.No.199 of 2014.

2.I.A.No.159 of 2017 was filed by the defendant to take up the issue as to whether an unregistered agreement of sale could be marked as evidence as a preliminary issue. After considering the application, the learned 3^rd Additional District Judge, Trichy has come to the conclusion that the agreement of sale dated 10.09.2013 was sought to be marked to establish the primary purpose and therefore, it cannot be received in evidence.

3.Though the issue for consideration before this Court is purely a legal issue, there is a necessity to briefly touch upon the facts that have ultimately culminated in the passing of the impugned order.

FACTS OF THE CASE:-

4.The petitioner herein, who is the plaintiff, had filed a suit O.S.No.199 of 2014 for specific performance on the file of the learned 3^rd Additional District Judge, Trichy. It is her case that on 10.09.2013, the defendant had entered into an agreement of sale with her to sell the suit schedule properties for a total sum of Rs.22,00,000/- and on the date of the agreement, a sum of Rs.20,00,000/- was paid as advance and the parties had agreed that the balance sum of Rs. 2,00,000/- would be paid within a period of 6 months from the date of the agreement. The defendant had undertaken to register the sale deed on receiving the said sum. The parties had clearly agreed that the time would not be essence of the contract.

5.It is the case of the plaintiff that the defendant's husband was present, when the parties had entered into the agreement of sale and executed the document. It is the also case of the plaintiff that she was always ready and willing to proceed further with the agreement. However, the defendant had been putting off the same. This constrained the plaintiff to issue a legal notice dated 01.02.2014, which was refused to be received by the defendant though intimation of the same had been given to her for over 3 days. On 14.12.2014, the plaintiff has also effected a paper publication informing the general public about her entering into an agreement of sale with the defendant. Since the defendant had failed to perform her part of the contract, the plaintiff had come forward with the instant suit for specific performance.

6.The defense to the above suit was that the plaintiff and the defendant's husband were known to each other for over 30 years and the plaintiff had been running a chit business, into which she had roped in the defendant's husband. It appears from the contentions of the written statement that the defendant's husband joined in various chits and also obtained the prize money. Meanwhile, the plaintiff had also borrowed a sum of Rs.15,00,000/- from the defendant's husband, for which, she had executed a promissory note in favour of the defendant's husband on 11.02.2015. The money was not returned and the plaintiff had cheated the defendant's husband for which he had given a criminal complaint. The suit is only a counter blast to the above complaint.

7.The defendant would further submit that when they had initially participated in the chit transactions, the title deeds of the defendant had been taken by the plaintiff and this has now been put into use for filing the above suit. She has come forward with th