Karnataka High Court
Venkatagiriyappa vs Smt V Kamalamma on 29 November, 2010
Author: H N Nagamohan Das
Bench: H N Nagamohan Das
INTHEHKHTCOURTOFKARNATAKAATBANGALO§E.
DATED THIS THE 29"' DAY OF NOVEMBER,_ ;201.{r)u'.'_.'__j " %
BEFORE
THE HON'BLE MR. JUSTICE é Y'
RFA No. 459/_2oo1A'
BETWEEN:
VENKATAGIRIYAPPA
S/O LATE YELLAPALLI _
REDDAPPA _ A
AGED ABOUT BQYEAERS A - :
R/AT BESTERE ROA1;D,_ _ 4_ "
YELA_HANKA-
BANGALORE NOIRTH TALUI"{7f ._ ¢ 1; ...APPELLANT
(By Sri YOGA BiAATavTA..s:TmHAA:,"sR_.cOUNsEL EOR
Sri S.S".GUTTAL; ~A.DV;)_
AND:
i'; " v,1§iAM"A1.,AMMA
sINGE"BEcEA_sED BY LRS
1(a) Suit sAB}'TiA
W'/0 YSRTNIVAS
AGED 'ABOUT 63 YEARS
---- A .AR/ATNO. 15694-1,
. L1G *"'"-'T MAIN ROAD, 2"" CROSS,
NAGARBA BLOCK, SRIRAMPURA
BANGALORE -- 560 021.
'K
2/
¥\.)
2. P.V.NIRMALKUMAR
AGED ABOUT 52 YEARS
3. P.V.MANJUNATI-I
AGED ABOUT 47 YEARS
R2 & R3 ARE SONS OF
LATE PSVENUGOPAL SWAMY
Rx AT No.1 18, 4"' MAIN ROAD,
CHAM ARAJPET,
BANGALORE -- 18.
4. P.V.UMAPATHI NAIDU
AGED ABOUT 45 YEARS
SINCE DECEASED BY
4(1)SmtESHWAR_}"._
W/O LATE ;i>.V;: IMARAI'HfNA1jjt§R A .
AGEOAABSOET 215: YEARS
OCC: I-I__OUS'LiW,}FE A
4(2)CHETA,N'A_ ._ . _ A
W/O LATE P.V.UMAPA.,T7HI NAIDU
AGED ABOUT 25' YEARS
._0CC:._HQUSE «
* . S BOTZHXARE RESIDING No.1 .17
' AT?' MAIN, A8"? CROSS,
. 'A.CHAM'A_RA§'PET, BANGALORE-18.
5. R SRINIVAS RAH;
S/O-. LA.fi'E -NfR.RA}U
AGED ABOUT 36 YEARS
A Ar:/O BHAGYASHREE DEVELOPERS
A 5S" No." 134/29, SHAKTI SR1" NEW
0"'
BEL ROAD, RMV 2"" STAGE,
BANGALORE A560 094. R_ESPONI§Ei\'F:T:Svv..
(By Sri.B.V.RA1\/IAMOORTHY, ADv., FOR R1_(A)
R--2~»3 SERVICE HELD SUFFICIENT I . _
R--4I & 2 ARE SERVED BY WAY OFFAFER _. ' I
PUBLICATION I '. I
SriT.S.AMAR KUMAR, ADV., FOfi'«M/§§_I;AW'§'§IRS, «. "
INC, ADvS.,FOR R5)
THISRFA IS FILED W8 96 R/W/6"w<IA:'R.VVI OF" AGAINST
THE ORDER & DECREE D"i';2A3_}03.20O1 PASSED IN
O.S.NO.75l2/92 ON THE FILE OF 'ifH.E"*--}_{Iv.I AD_DL.CITY CIVL
JUDGE, BANGALORE. . =
THIS RFA .COMIN:G FOR7IIEAR;ING THIS DAY,
THE COURT DELIVERED_'1"HE. FOLLOWING;
This appeal is di«recteLI the judgment and decree dated
23.03.2C§JI' in '751':;/I992 passed by 11"' Additional City
V" .I_Uiige,."'BAangaI.Ore, dismissing the Suit for decree of permanent
injiinci-i'On a'rId\'SvpeCific performance.
./
2. Appellant is the plaintiff and respondents are the
defendants before the Trial Court. in this judgment, for convenience, the parties are referred to their status before the trial Courtw .i _._ if
3. 11 is the case of plaintiff thatdefendants'"e§§ecuited7an * agreement of sale on 23.12.1988 as per to seil:l"~thiei1vi_:
plaint schedule property for a totalii_c'c-risideratiori of Under Ex.P.1 the defendants havey__.ac'i:nowledged"the reeeipt of advance amount of Rs.20,000f» "andide1V§--ve.,red'i.possession of schedule property and also_"so_rne iporiiginaln doeuments in part performance of the lagree1nen't.yo17 .sa}e..'Further it is agreed that Within a period of years th.e"en1i.re"----s_ale transaction is to be completed. V Subsequently the "plaintiff paid an additional advance amount of 1ie.11.0.i000{Li.en_l:10.11.1990 as per Ex.P.3. Thereafter on 10.06.1992 the_detfendanits.reeeived additional advance amount of Rs.20,000/-- and a§1'eed=to "e-ittend the period of agreement by another one year i"Vfrorn+!:hat date. Despite repeated requests, demands and lawyer's .;.'ne°1vsee' 'en 10.09.1992 as per Ex.P.8(a), the defendants failed to ,.....
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perform their part of obligation and on the other hand triedltato dispossess the plaintiff from the plaint schedule pr0pertyr;'"Tll the plaintiff initially filed O.S. No. 7512/1992 againstMgfpwwglefendants "
on 21.11.1992 for decree of permanent,'inju.nctijon--_ .0 defendants from interfering with 4_posse$s_ioii andyelnjeyrncntll of plaint schedule property. In this "75_l2/ defendants were placed ex--parte. Duriiilghhe suit lzlaefore the Trial Court the plaintiff seeking amendment of of prayer for decree of agreement of sale dated 23.12.1980. fo__r-- ainendrnent was allowed on 31.051.997.00 Trial an ex-parte decree on V 17.06.lf)9'7.s..Aggrieve_dl lhy this ex--parte decree of Trial Court the No. 590/ 1997 and the same came to be Further this Court in M.F.A. No. .1027/2000order dated 06.03.2000 set aside the ex-parte if decree of the Trial Court and remanded the matter for pfresh disposal in accordance with law. p--..
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4. After remand from this Court, the defendants filed written statement inter alia contending that subsequent to the agreement of sale dated 23.12.1988 there came to be another agreement v1/I the parties on 10.06.1992 as per Ex.D.l renewingllthe H agreement and enhancing the sale consid::'ration«fro--rn to Rs.4,50,000/~«. On the date of second Allagreernent lid plaintiff has paid additional advancelo«f:Rs.20,l)U0[{ thlevpsarne is acknowledged by the defendants Thellidevfendants contend that plaintiff, by agreement -
Ex.D.1_, has fi1.edl'i'the...snit and'-tth_erefore the same is liable to be dismissed. The defendantssltttrfner'contend that the suit is barred by limitation and the plainltilff was not ready and willing to perform his part Qffllthe On these grounds the defendants opposed the Trial Court on the basis of pleadings framed the following issites for consideration. A. ,1: Whether the plaintiff proves that the defendants agreed to sell the suit property for a consideration of Rs.One flu iii.
iv.
vi.
lakh and an agreement of sale dated 23.12.1988 has been executed?
Whether the plaintiff proves that he advance sale consideration of the defendants?
Whether the plaintiff: _proves3_th'at he possession and enjoymelnttof' the suit'proiperty?3E Whether the pil4a'intiff.'?proves«._V_thvatv.he has been ever ready and willing to perforrn contract?
'Whe:thei';:jp.tlie piaintiff pi'oves'xltha--t=' he is entitled for specific p.erforn2.ari'ee of the contract? ll Whethertheltlplaintiif proves that he is entitled to the l ' i_permaaentinjunction sought?
t vii.
:W_h"ether the defendants proves that the suit is barred :"t',y_'1irriitation?
vi ii.
"ix;
'Whether the defendants prove that if the suit is decreed V they will be put to more hardship?
What decree or order?
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5. Before the Trial Court the plaintiff examined himself as P.W.l and got marked Ex.P.l to Ex.P.27. The first defendant got examined herseif as D.W.l and got marked Ex.D.1. The Trial_Cour_t_ on appreciation of the pleadings, oral and documentary'.evi.de--nce¥-___ _ held that the plaintiff has proved the execution of agreev-mientllof sale if dated 23.12.1988 and payment of advance anioluntlllefii Further the Trial Court held that tthe..,_plaintiffliwas 1liCili':'[:6E1.dVyH and willing to perform his part of 0bligatl:(5ii.,:§lI1£l» theiisuitfis barred by limitation. Consequently thel._inip;I.gined~ judgment the Trial Court dismj'sse'd. suiltiifiyf plaintiff. He'nce, this appeal.
6. Sri. C'floganarasinallap.-'teamed Senior Counsel for the " pl,ainti.fficon.tends, thatllth'e"'question of limitation is a mixed question and"factl,lThe':.Trial Court allowed the amendment of plaint T if permitting the 'plaintiff to incorporate additional prayer for decree of specific performance of agreement of sale and the same relates back t"ei"the_ date of institution of the suit. As such, the suit filed by the Vpiainltiff is within the period of limitation. The Trial Court, without 2--..
& Va--J l 0 committed an error in not considering this oral evidence and contents of written agreement -- EX.P.l. Reliance is placed the following decisions.
a. lshwardas Vs. The State of Madliya. pPre_desli1"'and oVthe:r,s,7., AIR 1979 SC 55E b. ML. Shankaranarayana'Rand/ps. Co1'poratio"n City of Bangalore, 1973 (II)
7. Per contra, Sri. A_rnart~~.l{u'mar,"'-«learn-ed counsel for for respondent :'conten(1,__tl1at.'5 years later to the filing of the suit the plaintiff fi1ed~..thei.applic:ation for amendment of the plaint. It V was o41i'3l..05.lV99'Z application for amendment was allowed comierting' the for injunction into one for decree of specific peffo'rrnance"ef__aga*eement of sale. Therefore the suit for the purpose 9 . of decree for specific performance was filed only on 31.05.1997. As 3.1_._05.l'997 the suit for specific performance is barred by It is further contended that in the notice as per Ex.P.8(a) J. dated 10.09.1992 and also in the plaint before the Trial Court and even after the amendment of the plaint the plaintiff has suppreésed the second agreement -» Ex.D.l dated 10.06.1992. Trial Court rightly held that the plaintiff was not rea.{1giv:/lg' 0 to perform his part of obligation. Learnedjbcounslelfforgthe'de1endant3_T support the impugned judgment. of_t.he Tidal'*Court."T-tellialncelig placed on the following decisions.
a. Tarlok Singh Vs.'X(§jgy I<'jnm;gfitsa_m§a1=wa1, (1996) 8 sec 367 . 9 ., .
b. .V'is'liwar:1hhai§:_3 Lax.mina.rayan (dead) lfhroi1gh'L.l?ls*llzi11dVanother,._.(2001) 6 scc 163 c.' Man"'Kaur V(dr:cea,s:e'd.-- LRS) Vs. Hartar Singh Sangha, " 2.0:I0..i_AiR 'SCW-6'i 98 81 .Heard.VVVarguments on both the side and perused the entire anpeal pap¢rsl;'.j .. V V 1 !e\J"\..
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9. The suit is based on the agreement of sale dated 23.12.1988 Ex.P.l and the advance receipt dated .E0.06.l992 as per These two documents are not in dispute. In Ex.P.8 (a) M thc~.la\t4§fe1*.7:;_iA' notice dated 10.09.1992 it is specifically stated that afterbtlze 9 payment of second advance amount as per 'def'enclants_ f failed to perform. their part of obligation. Therefore under plaintiff called upon the defendants. _performip_iA their 'apart of obligation. Since the defe11d_a1i.ts failed Vi'to._ perform their part of obligation the plaintiff filed thesuitVon._i2 the plaint it is specifically stated wasireatiy_ia'nidwilling to perform his part of obligation Aar';r:§_defend'a.r._1ts-were.' avoiding to perform their part of obligation. l5.W.l deposes that he was ready and wi};l.1.ng...to perform his part of obligation and it was the :"V.Vdefencla11ts "eyaded to perform their part of obligation and therefor-e.he' 1ia»s.f11é;a the suit. +1 .10. Though the suit was filed on 21.11.1992 :1: was only for ._p'r:_.ari'c. injunction and there was no prayer for a decree of specific
-'-x rxl i performance of agreement of sale. it was only on 28.0i.l997l"t1ie plaintiff filed an application for amendment of the A' incorporate additional prayer for decree of specific of agreement of sale. it was on 31.05.1997 the .9 application filed by the plaintiff ppe1>;n__ittingl"tQ_i'amendthe _n1_eint9_i';hy"
incorporating additional prayer for decree:'of_specific._Vpert'orriiance of agreement of sale. Learned for contends that the prayer for decree of pspecificA.perforrriance to have been incorporated in the suit and therefore the of this contention reliance placVed."_oy_n'*.ta'tjudgrnent of this Court in M.L. Shankaranarayana Rao Vs.' Corporation of the City of Bangalore, 1973 itwherein it is held that amendment relates bacl<,t_o' theidatep or institution of the suit. on the other hand learned co'uns'e.l__dei5efidants relying on a judgment of the Supreme Court in th_e'cas;e of Tarlok Singh Vs. Vijay Kumar Sabharwal, 9' :'9.v4."'*(fl.9996}__8 SCC 367 contends that the suit for perpetual injunction is diff::rent"frorn the suit for specific performance. The suit for specific _.., €"-.1 fl"
K performance claimed by way of amendment to the plaint will be deemed to have been instituted only when the Court order allowing the amendment and it will not relate back to the date of " 3 suit. Further the Supreme Court in the case of Vishwa_mbh_ar others Vs. Laxminarayan (dead) throughliiisilaridv another; SCC I63 held that the amendment _thoua relate back to the date of filing and of limitation. In View of the lawpdeclaredlipbghlthelplbttpremeCourt in the two decisions referred to the learned Single Judge of this inilthe opfiillj/ll.i;."Shankaranarayana Rao Vs. oi'v.'th.e__fl£Ceity«lol"l~.B_angalore is no more a good law. Therefore thesuit for.specificperformance filed by the plaintiff is deemedito ehave filed" on 31.05.1997 when the Trial Court allowed the pplaijntiff to amend the plaint to incorporate the prayer for de'cree'___of"'spevc_ifie:'performance. If the date of suit for specific _perforii1anc~e iisvtlaken on 31.05.1997, then the same is barred by " " 2 l"li4mitati_on.
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h. properly bhialde i'can1nio't V
11. In Ex.P.4 - the receipt executed by the defendants acknowledging the additional. advance from the piaintiff 2. have agreed to extend the period of agreement of sale by-«lanotlieiri 0 year from that date. If that is so, the periodmof one 'i{ear« s:ijec_ifi:ed--:i'n Ex.P.4 will expire on 09.06.1993.' The lperiod' of 09.06.1993 will expire on 08.06.199'6:g:l'The to amend the plaint incorporate p't'ajte'r.e..;1Aecreel Viloflspecific performance was on 31.05 admitted facts the suit of the plaintiff the finding recorded by theTri';ti_E;"ottrt hol.ditig--.t:1iat"the suit of the plaintiff is barred by 'limita.t.iorii:3 .snp;)01'ted -by admitted evidence On record and the same is iri._accordanc'e}wi,.th'*--theJl.aw declared by the Apex Court in the t;ie<':i3.ions referred to Supra. I find no justifiable ground to in inlteifere thiefinding of the Trial Court. ""le2i"A'dmiittedly in the legal notice -- EX.P.8(a) and in the pIaint.__the has not pleaded anything with regard to the ix".-'.._'S'GCOHd agi-cement dated 10.06.1992 as per Ex.D. 1. But P.W.l in his ?\--r dot.
CI'OSS-CX21I'I1iI'1£1[lOl1 admits his signature on Ex.D.1.. P.W.l pleads ignorance as to under what circumstances he affixed his signature on Ex.D.1. Further P.W.l says that out of friendship he has signature on }3x.D.l. This evidence on record clearly establishyes if fact that the plaintiff admitted Ex.D.1. A i'eadi'n«g ofi..&Ex_:,D;ipl:' specifies that parties have agreed to enhance the".sal'»?,iconsidera*ti.on Rs..1,00,000/-- to Rs.4,50,000/--. Wheifthe parties haf»;ei"a_gi?¢'¢~;d to enhance the sale consideration' to then 'necessary for the plaintiff to plead and prove he and willing to pay the balance consiidenation Neither in Ex.P.8 the lawyeirfifinotice the plaint nor in the evidence of P.W.l he hasastatedithat was-ready and willing to pay the balance sale con's1deration"'ofiiRs.4i'i)0,000/--. In the absence of any such eyhlence the Trial Court rightly concluded that the plaiiitiff and willing to perform his part of obligation. V _Againi"this of the Trial Court is supported by evidence on "record_and the same is in accordance with law. 5'--.£ (ii
13. It is not in dispute between that there came to be an agreement of sale on 23.12.1988 as per Ex.P.l between the partiescplz is relevant to extract Clause -- 2 of the agreement of and the same reads as under: _ __ ._ "The VENDORS have th'i's~--day--l_4 pot V PURCHASER vacant physical "poss'essilonlic».of~ schedule land and parted withthe avais_lvable title of the schedule land to the lPrU:RCHASER_ ['3 plairtfl performance of Agreernent tc-* s'elll_: _i}.'UR(lIlHASER acknowledges the 14', As aglarn'st...the.tcontents of a written document _ Ex.P.1 there is no other rnaterialori .record. to show that the plaintiff was not put in possession ofthelplaint schedule property in part performance of agreemenlt sale. Except the oral interested testimony of D.W.1 st'aIin'g__that a"ct_t_1a'1:;'physica1 possession was not handed over to the V _p1a.intiff thereisll no other evidence on record. On the other hand RV'! 41 __ in evidence deposed that subsequent to the agreement of l.l_y1~_salel¥Ei<.P.3 he developed the schedule property by investing 21 sum r-~.lh"
an of Rs.90,000/». P.W.l further deposed that he has dug a borewell in the plaint schedule property by investigating money. Thiszfioral evidence of P.W.l is not seriously disputed and challen.ged_p'iri' cross--exarnination. The Trial Court without consideringiithe 'contents of Ex.P.1 and the oral evidence of the pa;=jties co'ii2niii_tted ei:ro__r"iri__ f holding that the plaintiff is not in possess.ionA oi'? the plfluilit Vschedjulevl property. The reasoning of the Trialitloxurt_thatviiu-adder'v'the:'{3eneral Power of Attorney -- Ex.Pi;2"'idate«.3li plaintiff was permitted to look after the plaint_vschedulefyppropeifif subsequently the same is revoked' iawyerisiioitice as per Ex.P.l2 and therefore ~..p_ossession of the plaint schedule property is contrary to. evidence on record. Therefore the finditgigof the Courton issue No. 3 is liable to be set aside. reasons stated above, the following;
0 R D E R A. ,.l,. "'"l"he appeal is partly allowed.
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11. The impugned judgment and decree of the Trial Court dismissing the suit of plaintiff for decree ofjspecific performance of agreement of sale is hereby ;coni'irr.nied._.__ T III. The judgment and decree of the TrialCojuI'tt.jin:s.ofar it relates to finding on issue Nosaf: and 6 are'hereby_ f set aside.
IV. The suit of the plaintilffor permanent injunction and also respondent decreed'-restraining them possession and schedule property except by T jg The jointly or severally or respondent No. 5 .j_a.lone are at liberty to work out their remedy to recover :il"poss~fess.ion of the plaint schedule property in accordance with law, if they are so entitled. sci)-
ll 'T "L.Rsl3o1 120:0. JUQGE