Both the writ petition and revision are filed by the second plaintiff in O.S.No.89/08 on the file of the Sub Court, Palakkad. The above suit was one for specific performance of an agreement for sale, and the respondents are the defendants. The writ petition is filed challenging the order passed in Ext.P3 application filed by the defendants by which the learned Sub Judge directed the plaintiffs to deposit the balance sale consideration due within the time limit fixed. Consequent to the non-deposit of the balance sale consideration within the time fixed, as ordered by the court, the suit was dismissed. That order dismissing the suit is challenged in the revision.

2. Short facts germane for consideration in the writ petition and also the revision can be summed up thus:

Ext.P2 agreement dated 26.3.2007 was entered with the defendants by the second plaintiff on behalf of his son, the first plaintiff, who is working abroad, for purchase of the plaint schedule properties. A sum of Rs.75 lakhs out of the sale price fixed was paid when the agreement was entered into fixing a time limit for execution of the sale deed on or before 22.1.2008, on payment of the balance sale consideration. The defendants have also agreed to produce the original title deeds and also furnish such security demanded by defendants to dispose by sale the interest of some of the vendors, who are minors. Imputing default on the part of the defendants in completing the sale, suit was laid seeking a decree of specific performance with an alternative prayer for refund of the sale price paid with interest, in case specific performance of contract is found not feasible. The defendants, on appearance, filed Ext.P3 application seeking a direction from the court to compel the deposit of the balance sale price due under Ext.P2 agreement contending that the delay in completion of the sale was due to the paucity of funds with the plaintiffs for completion of the contract. Ext.P4 counter was filed by the plaintiffs, in which disputing the allegations imputed by the defendants, they contended that they will suffer monetary loss, if the balance sale consideration of more than Rs.1 crore is kept idle on deposit. But if the claim of the defendants is bona fide, on production of convincing documents regarding their title, it was stated, they will deposit the balance price and get the sale deed executed. In Ext.P3 application, after filing of such counter, the learned Sub Judge passed an order on 28.6.2008 directing the plaintiffs “to deposit the balance sale consideration by 5.7.2008, and the defendants to produce original title deed for perusal on 5.7.2008”. On the request from the plaintiffs’ counsel for time to deposit the sum, that IA was adjourned to 15.7.2008 and then to 30.7.2008. On 30.7.2008 since the amount ordered was not deposited, as undertaken (according to the court below) by the counsel for the plaintiffs the suit was dismissed under Section 151 of the CPC. As indicated earlier, the order dated 28.6.2008 passed on Ext.P3 application directing the plaintiffs to deposit the balance sale consideration is challenged in the writ petition, and the dismissal of the suit by order dated 30.7.2008 in the revision.

3. I heard the counsel on both sides.

4. The learned counsel for the plaintiffs, Senior Counsel Sri.T.Krishnanunni assailed the orders impugned in the writ petition and the revision contending that readiness and willingness on the part of the plaintiffs in a suit for specific performance, as covered by Section 16(c) of the Specific Relief Act, is a relevant factor to be determined in the trial of the suit and at any rate, the plaintiffs need show only their financial ability for performance of the contract of sale during the pendency of the suit. Plaintiffs have produced Ext.P5 series, documents issued by the bank evidencing the financial capacity of the first plaintiff, but, according to the counsel, those materials were ignored and discarded by the court