1 CMA.No. 688 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.04.2023

CORAM:

THE HONOURABLE MRS. JUSTICE N.MALA

C.M.A.No. 688 of 2023

and

CMP.No. 6064 of 2023

V.A. Balakrishnan

...Appellant

Versus

Pavun

Respondent

Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of the

Civil Procedure Code, prays to set aside the fair and decretal order dated

18.11.2022 passed in I.A.No.2 of 2022 in O.S.No. 5421 of 2022 on the file

of XXI Additional City Civil Court, Allikulam.

For Appellant

:

Mr. M. Jaikumar

For Respondent

:

Mr. V. Devendhiran

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2 CMA.No. 688 of 2023

JUDGMENT

This Civil Miscellaneous Appeal has been filed seeking to set aside

the fair and decretal order dated 18.11.2022 passed in I.A.No.2 of 2022 in

O.S.No. 5421 of 2022 on the file of XXI Additional City Civil Court,

Allikulam.

2.

The appellant herein is the plaintiff and the respondent herein

is the defendant in the original suit.

3.

It is the case of the plaintiff that the suit property was

originally purchased by one Mangala Lakshmi under a sale deed dated

28.05.1976, registered as Doc.No. 135 of 1976 on the file of Sub Registrar

Office, Kodambakkam. After her demise, her husband Munusamy entered

into an agreement for sale on 12.02.2007 with the plaintiff to sell the suit

property for sale consideration of Rs.32,50,000/- and the plaintiff had also

paid Rs.15,00,000/- as advance and he was put in possession of the suit

property. According to the plaintiff, he was in possession of the suit

property from the year 2007 and he was handed over all the original

documents pertaining to the above said property. After the demise of

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3 CMA.No. 688 of 2023

Munusamy, the defendant approached the plaintiff claiming herself to be

the sister and the only legal heir of Munusamy. Subsequently, the

appellant entered into an agreement on 11.01.2008 with the defendant and

paid an amount of Rs.7,50,000/-. In the said agreement, the defendant

acknowledged the receipt of Rs.22,50,000/-. On 12.06.2008, the

defendant received a further amount of Rs.3,00,000/- and acknowledged

the same. The plaintiff therefore claimed to have paid Rs.25,50,000/- out

of total sale consideration of Rs.32,50,000/-. The plaintiff stated that he

was in uninterrupted possession and enjoyment of the suit property from

the year 2007. Though the plaintiff agreed to pay the balance sale

consideration at the time of registration, the defendant did not come

forward to execute the sale deed in favour of the plaintiff. In 2010, the

defendant informed that there was a Will dated 01.11.2006 executed by

her brother Munusamy in her favour and that she would execute the sale

deed after the Will was probated before the Court. The plaintiff was not

informed about the probate order passed in O.P.No. 298 of 2012 on

06.06.2018. The plaintiff was always ready and willing to perform his

part of contract but the defendant did not come forward to execute the sale

deed. The plaintiff sent a legal notice dated 05.01.2021 calling upon the

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4 CMA.No. 688 of 2023

defendant to receive the balance sale consideration of Rs.7,00,000/- and

execute the sale deed in his favour. Even though the defendant received

the notice, the defendant did not send any reply. The plaintiff therefore

filed the suit for specific performance and permanent injunction among

other reliefs. Thereafter, the defendant gave a Police complaint against

the plaintiff and his tenants to vacate the suit property. During the

pendency of the suit proceedings, the plaintiff filed I.A.No.2 of 2022 in

O.S.No. 5421 of 2022 under Order 39 Rules 1 and 2 of the Code of Civil

Procedure, for an order of Ad-Interim injunction restraining the defendant

from interferin