C.R.P.(MD) No.1877 of 2017

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/Respondent/

Plaintiff

vs.

R.Hemalatha

... Respondent/Petitioner/

Defendant

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 Mr.K.Prabhakar

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

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C.R.P.(MD) No.1877 of 2017

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 compla