IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 CRP.No.278 of 2006 (C) ---------------------------- AGAINST THE ORDER DATED 08/11/2005 IN IA.737/03 IN OS.109/1998 of III ADDL.SUB COURT, KOZHIKODE .................... REVN. PETITIONER: RESPONDENT/DEFENDANT -------------------------------------------------------- P.M.BHARGAVI, D/O.CHANDUKKUTTY, PANANGOTTUMOOLAYIL, KUTTULI AMSOM DESOM, HOUSE NO.29/2277, `VRINDAVAN', KUTHIRAVATTOM.P.O, KOZHIKODE. BY ADV. SRI.A.BALAGOPALAN SRI.K.SANEESH KUMAR SRI.T.L.LAKSHMI RESPONDENT: PETITIONER/PLAINTIFF ---------------------------------------------- K.MOHANAN, S/O.M.K.PANICKER, KAVANAPPILLIL, VADAKKUMBHAGOM AMSOM DESOM, MUKUNDAPURAM TALUK. ADV. SRI.K.K.JOHN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. R. P. No.278 of 2006 ------------------------------------------------ Dated this the 24th day of November, 2008 ORDER O.S.109/98 is a suit instituted by the respondent against the petitioner for a decree for specific performance of an agreement to sell the property scheduled therein. The petitioner had been put in possession under the agreement and so she was in occupation of the building and 17.5 cents wherein the building stands. Pursuant to the decree for specific performance the petitioner did not remit the balance sale consideration and thereupon the respondent moved petition under Section 28 of the Specific Relief Act for rescinding the contract and that was allowed. Thereafter the petitioner moved a petition (I.A.4318/03) under Section 30 of the Specific Relief Act claiming that the benefit received by the respondent under the agreement namely C. R. P. No.278 of 2006 -2- the advance of Rs.6,31,337/- has not been deposited and therefore, a direction be given to the respondent to deposit that amount without which the respondent should not have been allowed to rescind the contract. Vide order dt.28/02/04 on I.A.4318/03 the court below reviewed the order dt.30/09/03 on I.A.737/03 allowing rescission of the contract and directed the respondent to deposit the advance amount which he has received under the suit agreement. Accordingly, the advance amount of Rs.6,31,337/- was deposited by the respondent in the court below on 12/03/04. These are matters which are beyond the pale of controversy. After the deposit was so made the court below passed a further order on 08/11/05 on I.A.737/03 which is assailed in this revision. 2. It is submitted by the counsel on both sides that the initial order passed by the C. R. P. No.278 of 2006 -3- court below on 30/09/03 on I.A.737/03 allowing rescission of contract was an order passed on consent from the present petitioner as well and that what was reviewed vide I.A.4318/03 is only to modify the order incorporating a direction to the respondent to deposit back the advance amount received by him. Thus order rescinding the contract as per Ext.A6 order dt.30/09/03 which also directs the petitioner to handover vacant possession of the scheduled building to the respondent within two weeks and ordering that in the event of failure, the respondent therein who is the petitioner in I.A.737/03 shall be entitled to obtain vacant possession of the same through court stands as it is. However, vide order impugned passed on I.A.737/03 on 08/11/05 the respondent is granted certain other reliefs also by the court below allowing him to recover from the petitioner an amount of Rs.3,500/- per month C. R. P. No.278 of 2006 -4- towards rent of the building from the date on which Ext.A7 order was passed viz. 28/02/04 and further to mesne profit of Rs.500/- per month from 01/08/95 etc. The detailed conditions regarding such payments etc. which is assailed in this revision do not assume any importance at present as counsel for the respondent submitted that the respondent does not want any rent or mesne profit and that it is enough if he gets back delivery of vacant possession of the scheduled building and premises without any further delay with no rent or mesne profits in arrears. That was recorded by this Court on 20/11/08. Counsel for the petitioner, thereupon submitted that the case be posted to this day to enable him to contact his client and report as to when she will surrender vacant possession of the building and property to the respondent. Today counsel for the petitioner submits that he C. R. P. No.278 of 2006 -5- contacted the petitioner and the petitioner wanted time of one year to surrender vacant possession of the scheduled building. I fail to understand the propriety of the petitioner having asked for so much time to surrender vacant possession of the scheduled building when she was not prepared to abide by the contract for specific performance and the respondent has deposited back in court the entire amount he has received by way of advance under the agreement as early as on 12/03/04 pursuant to direction of court on her application and he has even given up his claim for rents for the last more than four years and right to claim mesne profits etc. 3. In the result, I direct the petitioner to surrender vacant possession of the scheduled building to the respondent positively within 30 days from today. In case she does not surrender vacant possession C. R. P. No.278 of 2006 -6- within the said 30 days the respondent shall be at liberty to move the execution court to seek for delivery even without further notice of delivery to the petitioner as the counsel takes notice of the order passed on this day. 4. This C.R.P is disposed of as above. K.P.BALACHANDRAN, JUDGE kns/-