IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 11068 of 2009(O) -------------------------- OS.38/2009 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): -------------------------- P.ASKAR ALI KHAN, S/O. LIYAKATH ALI KHAN, RESIDING AT PALAKKAL, KARIMBA II VILLAGE, KALLADIKODE DESOM, MANNARKKAD TALUK. BY ADVS. MR.SANTHEEP ANKARATH, MR.V.C.MADHAVANKUTTY. RESPONDENT(S): --------------------------- 1. PATHU @ PATHUMMA, AGED 55 YEARS, W/O. POLLAKUNNAN MUHAMMED HAJI & D/O. KONGATH KURIKKAL HYDROSE, THIRUVIZHAMKUNNU AMSOM AND DESOM, MANNARKKAD TALUK. 2. FIROS KHAN, AGED 36 YEARS, S/O. DO. RESIDING AT DO. 3. SHANAVAS KHAN, AGED 32 YEARS, S/O. DO..DO... R1 TO R3 BY ADV. MR.M.C.JOHN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11068/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.38 OF 2009 DTD. 27/01/2009 FILED BY THE PETITIONER BEFORE THE SUB COURT, OTTAPALAM. P2: COPY OF THE COUNTER AFFIDAVIT DTD. 25/02/2009 IN I.A.309 OF 2009 IN O.S.NO.38/2009 FILED BY THE RESPONDENTS BEFORE THE SUB COURT, OTTAPALAM. P3: COPY OF THE AFFIDAVIT DTD. 16/03/2009 IN SUPPORT OF I.A.865 OF 2009 IN O.S.NO.38/2009 FILED BEFORE THE SUB COURT,OTTAPALAM. P4: COPY OF THE ORDER DTD. 26/03/2009 IN O.S.NO.38/2009 PASSED BY THE SUBORDINATE JUDGE'S COURT, OTTAPALAM. P5: COPY OF THE ORDER DTD. 26/03/2009 IN I.A.865 OF 2009 IN O.S.NO. 38/2009 PASSED BY SUBORDINATE JUDGE'S COURT, OTTAPALAM. P6: COPY OF THE ORDER DTD. 24/02/2007 IN S.M.116 OF 1977 PASSED BY TALUK LAND BOARD, MANNARKKAD. P7: COPY OF AGREEMENT DTD. 27/08/2008 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE JUDGMENT DTD. 14/10/2008 IN WPC.NO.26306/2008. /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.11068 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 12th June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To call for the records leading to Exts.P4 and P5 and to set aside the same by issuing a writ, order or direction. 2. Issue such other orders as are deemed fit and proper in the circumstances of the case. 2. Petitioner is the plaintiff in O.S.No.38/09 on the file of the Sub Court, Ottappalam. Suit was one for specific performance of an agreement of sale. The respondents in the Writ Petition are the defendants in the suit. Copy of the plaint in the suit is produced as Ext.P1. On appearance before the court, the defendants admitted the claim of the plaintiff and agreed to execute the sale deed receiving the balance sale price agreed upon in the agreement of sale. The learned Sub Judge noting the admission of the defendants, posted the case for hearing on deposit. Admittedly, the agreement of sale contains a statement that land ceiling case over the property agreed to be conveyed upon is pending and the defendants, the executants of the deed had agreed to get clearance of the land from the ceiling W.P.C.No.11068/09 - 2 - provisions to enable the sale of property free from all encumbrances to the plaintiff. It is also conceded at the time of hearing that the ceiling case proceeded in respect of the property, an adverse order has been rendered by the Taluk Land Board indicating that the property agreed to be conveyed to the plaintiff falls within the excess area of the declarant. The learned Sub Judge basing on the admission of the defendants to execute the sale deed on receiving the balance sale price stipulated in the agreement of sale, passed Ext.P4 order directing the plaintiff to deposit a F.D. receipt for balance consideration to proceed with the prosecution of his suit. Impeaching the correctness and legality of that order, the plaintiff has preferred this revision. 3. I heard the learned counsel on both sides. Perusing the order passed by the learned Sub Judge, it is noticed that the plaintiff has been found fault with for not giving up the relief of specific performance and limiting his suit claim for return of the defendants amount when he has a case that the property covered by the sale is not free from encumbrance, but subject to ceiling proceedings under the Kerala Land Reforms Act. In a suit for specific performance, to express his readiness and willingness especially where the defendants has volounteered to execute the sale deed, the plaintiff must deposit W.P.C.No.11068/09 - 3 - the balance consideration to show his bonafides is the view expressed by the learned Sub Judge passing the impugned order. The plaintiff is expected to show that he is possessed of sufficient funds and not to produce liquid cash to establish his readiness and willingness to fulfill his part of the contract entered with the other party. At any rate, the direction issued to produce F.D. receipt for balance consideration as a precondition for prosecution of the suit cannot at all be sustained. The agreement of sale entered between the parties in unmistakable terms shows that before the sale deed is registered, the executants will get the land free from the ceiling case and when that be so, as long as the ceiling case continues, it is not proper to compel the plaintiff to take the sale deed by paying the balance price. The court cannot also insist in a suit of this nature directing the plaintiff to limit his claim for the advance amount. Plaintiff is within his right to claim under Section 22(2) of the Specific Relief Act the refund of the amount as an alternative relief and it has been so done in the present case also. Having regard to the facts and circumstances involved, without adverting to the disputed questions canvassed by both sides, in the interest of justice, it will be sufficient to direct the plaintiff to show that he is possessed of sufficient funds for taking the sale deed in terms of the agreement of sale to the satisfaction of the court below. W.P.C.No.11068/09 - 4 - The defendants, it appears, earlier admitted their willingness to execute the sale deed. If they have no challenge to the suit claim, definitely, it has to be expressed in unmistakable terms by filing a statement before the court below. In case any such statement is filed, the learned Sub Judge has to examine all the questions involved with reference to the terms entered between the parties under their agreement as to what reliefs, if any, can be granted to the plaintiff and if so, subject to what directions and conditions. I make it clear that the observations made in this judgment shall not have any bearing or in any way influence the decision on the merit of the case or cause prejudice to any of the parties involved in the lis. As indicated above, the plaintiff shall be given an opportunity to show that he is possessed of sufficient funds to the satisfaction of the court below within a period of one month from the date of this judgment to substantiate his readiness and willingness to take the sale deed in terms of the agreement of sale. The Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE