COMMON ORDER:

C.R.P.No.1880 of 2022 is filed by the petitioners – plaintiffs against the order in I.A.No.161 of 2022 in O.S.No.3 of 2015 on the file of the Junior Civil Judge, Thungathurthy, Suryapet District dated 07.06.2022.

2. C.R.P.No.303 of 2023 is filed against the docket order dated 13.06.2022 for dismissing the petition for non-compliance of the conditional order dated

07.06.2022.

3. The case of the petitioners was that they filed the suit for specific performance of contract basing on an un-registered agreement of sale executed by the respondent. The plaintiff No.2 filed his chief examination affidavit on 03.03.2022 along with a receive documents petition. The same was allowed on 09.03.2022. The documents were marked as Exs.A1 to A5 on behalf of the plaintiff. The plaintiff No.2 was partly cross-examined by the respondent counsel. Thereafter, the matter was posted to 16.03.2022. On 16.03.2022, the plaintiff No.2 could not attend the court due to his ill-health as he was suffering with loose motions and vomittings. The matter was posted to 17.03.2022, but due to his health condition, the plaintiff No.2 could not attend the court on the said date also and his counsel filed a petition under Order 17 Rule 1 along with a medical certificate but the court dismissed the said petition as well as the suit. Hence, he filed I.A.No.161 of 2022 under Order 9 Rule 9 of CPC to restore the suit by setting aside the order of dismissal dated 17.03.2022.

4. The respondent No.2 filed counter in the said application.

5. On considering the submissions of both the counsel on record, the trial court allowed the petition restoring the suit to its original place on condition that the petitioner – plaintiff should appear before the court on every date of adjournment and proceed with the case without seeking any adjournment and if he failed to do so, the petition would stand dismissed and he should pay a cost of Rs.300/- to the respondent by 13.06.2022.

6. On 13.06.2022, the petitioners – plaintiffs filed another adjournment petition under Order 17 Rule 1 read with Section 151 of CPC. The said petition was dismissed by the court observing that, despite the conditional order, the petitioner did not choose to comply the same and filed the adjournment petition seeking one week time. As he failed to prove his bonafides in complying the conditional order dated 07.06.2022, the court was not inclined to adjourn the matter and dismissed the petition on 13.06.2022.

7. Aggrieved by the said dismissal, the plaintiff preferred this revision contending that in a suit for specific performance trial could not be commenced in the absence of agreement. The existence and marking of documents was an indispensable step. The respondents were party to the partition suit in O.S.No.165 of 2014. Filing of the agreement in the said suit by the petitioners – plaintiffs was not denied either by filing counter or orally. As such, the said assertion ought to have been accepted by the trial court while passing the orders in I.A.No.161 of 2022 on 07.06.2022. The petitioners – plaintiffs were old people. The nature of the suit would warrant an opportunity to be given to them. The trial court fell into error in numbering the adjournment petition filed on 13.06.2022 once again as I.A.No.161 of 2022. The matter therefore did not receive careful consideration as it warranted.

8. Dismissing the petition on the ground of violation of condition was not a correct approach and prayed to allow the revisions by setting aside the orders in I.A.No.161 of 2022 in O.S.No.3 of 2015 dated 07.06.2022 and 13.06.2022.

9. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents.

10. Perused the record.

11. The suit is filed by the petitioners – plaintiffs for specific performance of contract basing on an unregistered agreement of sale dated 05.06.1991. The suit is pertaining to the year 2015. The chief examination affidavit of plaintiff No.2 was filed on 03.03.2022.