IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 RFA.No. 310 of 2007() --------------------- OS.26/2004 of PRINCIPAL SUB COURT,PARAVUR .................... : APPELLANTS --------------------------- DIVAKARAN,S/O.RAMAN, KALARIKKAL,KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.P.K.ASHOKAN SMT.DHANYA P.ASHOKAN RESPONDENTS: ------------- USHADEVI,D/O.RATHNAMMA, VATTAN PARAMBU HOUSE, ALENGADU VILLAGE, PARAVUR TALUK. BY ADV. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN IA NO.2241/2007 DISMISSED. 19/6/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No.310 of 2007-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of June, 2008. JUDGMENT Raman, J. This is an appeal against the judgment and decree passed by the court below in O.S.No.26/2004. The suit was for specific performance of a contract for sale. As per the judgment, the defendant was set ex-parte and at the same time instead of granting specific performance, the court below has granted an alternate relief of return of advance money. 2. Heard both sides. The only reason given for not granting the relief of specific performance is that both sides are not aware of the actual extent of the property. We have gone through the agreement for sale which contains a schedule, the extent of which is also mentioned. However, the parties were not sure whether on actual measurement there will be any change in the extent of property. It is but usual to provide a clause in the agreement for sale that actual extent will be on measurement, so that in the title deed the correct extent will be there. The parties provide a safeguard clause, viz. on actual measurement whatever extent is shown, the price should be paid accordingly. Therefore, it is not a case where the property RFA 310/2007 -2- could not be identified. The property could very well be identified by the boundaries shown in the schedule itself. Therefore, the agreement is not at all vague in that regard. The reason thus stated by the court below for refusing specific performance is not correct. In these circumstances, we find that the court below has not exercised its discretion in an objective manner. 3. Therefore, the judgment and decree is set aside. It was brought to our notice that the defendant was set ex-parte and a petition for setting aside the ex-parte decree was filed earlier, but it was withdrawn since only the alternate relief was granted. In view of the appeal preferred by the plaintiff, and in view of the fact that the appeal is allowed, we set aside the order declaring the defendant ex-parte and he is given an opportunity to contest the matter on merits. The appeal is thus allowed by way of remand, for fresh consideration in accordance with law. The parties shall appear before the court below on 15.7.1008. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.)