Telangana High Court
Jameel A.Hussain vs Madaukuri Venkateswara Rao And 4 Others on 6 June, 2023
THE HON'BLE SRI JUSTICE A.SANTHOSH REDDY
SECOND APPEAL No.379 of 2013
JUDGMENT:
This second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short "C.P.C.") is directed against the judgment and decree, dated 14.11.2012, in A.S.No.56 of 2008 on the file of I Additional Chief Judge, City Civil Court, Secunderabad, wherein the said appeal filed by the appellant herein was partly allowed.
2. Originally, one Maddukuri Venkateshwara Rao filed suit in O.S.No.119 of 1999 before the III Senior Civil Judge, City Civil Court, Secunderabad and during the pendency of suit, he died and his legal representatives were brought on record as plaintiff Nos.2 to 4.
3. For convenience sake, the parties are hereinafter referred to as arrayed in the suit before the trial Court.
4. Heard Sri D.Madhava Rao, learned counsel for the appellant and Sri L.Prabhakar Reddy, learned counsel for respondent No.3. None appeared for the other respondents. Perused the record and the impugned judgments of both the Courts below and the decisions cited at bar. 2
5. Briefly stated, the facts are that defendant No.1 is the absolute owner of house bearing No.12-13-483 admeasuring 650 square yards in survey No.175/2 situated at Lallaguda Village, Street No.1, Tarnaka, Secunderabad ( hereinafter referred as "the suit property") by virtue of inheritance and succession. Defendant No.1 had executed a registered General Power of Attorney bearing document No.433/97, dated 11.4.1997, appointing defendant No.2 as his lawful attorney to sell the suit property. It is stated that defendant No.2, who is GPA holder of defendant No.1, offered to sell the suit property to the plaintiff for a total sale consideration of Rs.4,60,000/- and the plaintiff has agreed and accepted to purchase the same for said consideration. Accordingly, the defendants have executed agreement of sale in respect of the suit property for a total sale consideration of Rs.4,60,000/- on 31.12.1997 in favour of the plaintiff. On the date of agreement of sale, the plaintiff has paid an amount of Rs.20,000/- towards earnest money. That as per the clause No.2 of the agreement of sale, the plaintiff should pay first installment of Rs.50,000/- on or before 15.07.1998, the second installment of Rs.2,20,000/- on or before the end of March, 1999 and the balance sale consideration was agreed to be paid on or before 15th April, 1999 at the 3 time of registration of the sale deed. That as per the agreement, the plaintiff has paid Rs.50,000/- on 15.07.1998, Rs.2,20,000/- on 02.04.1999 towards part sale consideration.
6. The plaintiff has issued cheque bearing No.046273, dated 05.04.1999 drawn on Oriental Bank of Commerce, Auto Nagar Branch, Hyderabad in full and final payment of sale consideration, as defendant No.2 expressed necessity of amount. As the plaintiff has paid the entire sale consideration to the defendants, he got prepared sale deed and as per the terms of agreement of sale, before going for registration of sale deed, the defendants should hand over the physical possession of the suit property. But, it has come to the knowledge of the plaintiff that defendant No.1 has cancelled the G.P.A. On 07.04.1999 and the same was informed to the Sub-Registrar and not to execute any registered sale deeds in respect of the suit property.
7. The plaintiff has paid the entire sale consideration of Rs.4,60,000/- as per agreement of sale to defendant No.2, who is registered GPA holder of defendant No.1. It is also stated that in case, the defendants have not encashed the above said cheque, the plaintiff is ready and willing to deposit the cheque amount of Rs.1,70,000/- before the Court towards 4 final sale consideration. The plaintiff is legally entitled to seek registration of the sale deed in respect of the suit property, having paid the entire sale consideration and defendant No.1 has no right to cancel the GPA, since the agreement of sale was executed by defendant No.2, the GPA holder during the subsistence of said GPA and there is any amount of collusion between defendant Nos.1 and 2 only to avoid the registration of the sale deed and to defeat the lawful rights. As such, he filed the suit for specific performance of contract as per the agreement of sale, dated 31.12.1997, in respect of the suit property and to direct the defendants to execute registered sale deed and also for perpetual Injunction.
8. Defendant No.1 resisting the claim of the plaintiff filed written statement stating that he is the absolute owner of the suit property having succeeded the same from his father late A.Baquar Hussain. It is also stated that defendant No.1 executed GPA appointing defendant No.2 as his power of Attorney holder to look after and manage the suit property along with other properties, as defendant No.1 is residing at Mumbai. When defendant No.1 came to know that defendant No.2, while colluding with third parties and selling the property without his 5 knowledge, he cancelled the power of attorney by giving notice to him. He has denied the agreement of sale and payment of sale consideration done in respect of the suit property. Defendant No.1 having got knowledge through proper publication that defendant No.2 is playing fraud and dealing with properties belonging to defendant No.1 posing himself as the owner and alienating the properties without furnishing the details of dealings and the amounts involved, defendant No.1 has rightly cancelled the GPA and cautioned the general public not to deal with defendant No.2 regarding the properties owned by defendant No.1. Defendant No.1 denied the issuance of cheque for final payment and plaintiff paid entire sale consideration under agreement of sale and it is stated that agreement of sale itself is a rank collusion between the plaintiff and defendant No.2 and defendant No.1 is no way concerned with the said transaction and not bound by the same. The suit property is an open site and there exists no house. The house number mentioned is of the old house belonging to defendant No.1. Defendant No.1 is no way concerned with the transaction alleged to have entered into and the question of executing the sale deed in pursuance of the alleged agreement 6 of sale does not arise. There are no merits in the suit. Hence, he prays to dismiss the suit with exemplary costs.
9. Defendant No.2 filed written statement admitting the fact that he was given power of attorney by defendant No.1 by executing the General Power of Attorney dated 11.04.1997 in respect of the suit property and consequently entered into an agreement of sale with the plaintiff to sell the same for consideration of Rs.4,60,000/- having received an amount of Rs.20,000/- as advance and other conditions that the plaintiff should pay Rs.50,000/- on 15.07.1998 and another sum of Rs.2,20,000/- by also agreeing other terms and conditions incorporated in the agreement. He also admitted that vacant possession of the suit property to the plaintiff by handing over the keys and to execute the registered sale deed after receiving the balance sale consideration. He also admitted that he received entire sale consideration from the plaintiff as per the terms and conditions of the agreement of sale and accordingly, defendant No.2 admitted the entire claim of the plaintiff. In the meanwhile, the GPA executed in his favour was cancelled by defendant No.1 and same was informed him to him over the phone. As such, he could not execute the regular sale deed in favour of the plaintiff.
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10. On the basis of above pleadings, the trial Court has framed the following issues:
1. Whether the agreement of sale dated 15.07.1998 is true, valid and binding on defendant Nos.1 and 2?
2. Whether the plaintiff is entitled to the relief of specific performance against defendant Nos.1 and 2?
3. Whether the plaintiff is entitled to the perpetual Injunction as prayed for?
4. To what relief?
11. During trial, the plaintiff examined himself as PW.1 and also examined Pw.2 on his behalf and got marked Exs.A.1 to A.l0. On the other hand, defendant Nos.1 and 2 examined themselves as DWs.1 and 2. No documents marked on their behalf.
12. On a consideration of the evidence available on record, the trial Court held that Ex.A.1 agreement of sale, dated 15.07.1998, is valid and binding and genuine and binding on both the defendants and the plaintiff is entitled for specific performance of Ex.A.1 agreement of sale from defendant Nos.1 and 2 and thereby, decreed the suit vide judgment and decree, dated 18.12.2006, for specific performance of agreement of sale by defendant Nos.1 and 2 by executing a registered sale deed in respect of the suit property and for consequential relief of Injunction . 8
13. Aggrieved and dissatisfied with the judgment and decree of the trial Court, defendant No.1 filed first appeal vide A.S.No.56 of 2008 before the I Additional Chief Judge, City Civil Court, Secunderabad.
14. The learned Judge has formulated the following point for consideration:
"Whether respondent Nos.2 to 4 who are LRs of respondent No.1/plaintiff are entitled for the specific performance against the appellant/defendant No.1 and respondent No.5/defendant No.2?
15. The appellate Court on re-appraisal of the entire evidence held that respondent Nos.2 to 4-plaintiff Nos.2 to 4 are entitled for specific performance of agreement of sale on deposit of balance sale consideration of Rs.1,70,000/- with interest @ 12% per annum and directed defendant Nos.1 and 2 to execute and register the sale deed in their favour and accordingly, partly allowed the appeal confirming the rest of the judgment and decree of the trial Court.
16. Feeling aggrieved by the judgment and decree of the appellate Court, the unsuccessful defendant No.1 has preferred this second appeal. 9
17. During the pendency of the second appeal, appellant No.1- defendant No.1 died, his legal representatives were brought on record as appellant Nos.2 and 3.
18. In view of the following substantial question of law raised in para No.19 of the grounds of appeal, the second appeal was admitted.
" In a suit for specific performance can the appellate Court partly allow the appeal directing the plaintiff to deposit money in the Court and directing the defendant to execute and register the sale deed when there is no cross appeal?"
19. Learned counsel for the appellants submitted that both the Courts below have misread the evidence on record and erroneously came to conclusion that the plaintiff paid the entire sale consideration, which is incorrect as per the evidence and erred in decreeing the suit. He further submitted that both the Courts have misconstrued the plaint pleadings and the documents. He further submitted that the appellate Court passed the decree, as partly allowed with the modification directing the plaintiffs to deposit balance sale consideration of Rs.1,70,000/- with interest @ 12% per annum without there being any cross-appeal, which is perverse and erroneous finding. He further submitted that in the light of the evidence available on record, findings recorded by the appellate court 10 are perverse. Hence, he prays to set aside the impugned judgment and decree by allowing the appeal. Learned counsel has placed reliance on on the decisions of Narayan Reddy v. Gulam Mustafa1, Challa Raju v. Pyla Gireenu2, Chodi Mahalakshmi v. Koppada Sathiraju3, Chennupati Satyanarayana v. Mundru Venkateswarlu, died and others4, Namboori Janaki died per L.Rs v. Gurram Hanumantha Rao5, Banarsi v. Ram Phal6.
20. On other hand, learned counsel for the respondent No.3 submitted that both the Courts have concurrently decreed the suit and there is no illegality and there are no valid grounds to interfere with the concurrent findings of both the Courts below. He submitted that the concurrent findings of the Courts below are based on proper appreciation of oral and documentary evidence and there is nothing to show that they misconstrued the plaint pleadings and the documents in decreeing the suit. He further submitted that the appellate Court has further clarified the order passed by the trial Court that amount paid by way of cheque for Rs.1,70,000/- was not encashed and the said fact was considered by the 1 Manu/AP/0782/2015 2 Manu/AP/0922/2017 3 Manu/AP/0034/2011 4 Manu/AP/0742/2008 5 Appeal Suit Nos.2361 and 2429 of 2001 6 2003 (3) ALD 51 (SC) 11 appellate Court and a detailed order was passed. The said judgment of the appellate Court cannot be termed as perverse and it was made within the powers of appellate Court under Order 41 Rule 33 of C.P.C. Therefore, he prays to dismiss the appeal. Learned counsel has placed reliance on the decisions of Basavaraj v. Padmavathi7, D.N.Raju v. Smt.Santosh Verma8, Sughar Singh v. Hari Singh (Dead) through Lrs9, Ferrodous Estates (Pvt.) Ltd., v. P.Gopirathnam (Dead) and others.10
21. After analysing the relevant evidence and documents available on record, the trial Court had discussed issue No.1 and recorded finding thereon as under:
" 16. Therefore, the defendant No.1 cannot question the genuineness and the validity of the Ex.A.2 to A.5 receipts. Further he has not denied the execution of Ex.A.1 agreement of sale as executed by defendant No.2 as his lawful attorney in favour of the plaintiff by agreeing to sell the suit schedule property for the consideration of Rs.4,60,000/- on 31.12.1997 by also receiving an advance amount of Rs.20,000/-on the same said date. Further the defendant No.2 has not denied the receiving of the amounts and also for acknowledging the payments by issuing Exs.A.2 to A.5 receipts in favour of the plaintiff.7
2023 SCC OnLine SC 10 8 2006 SCC OnLine AP 1103 9 2021 SCC OnLine SC 975 10 AIR 2020 Supreme Court 5041 12
17. Therefore, Ex.A.1 agreement of sale dt.15.7.1998, is valid and binding and genuine one defendant No.1 executed GPA in favour of defendant No.2 is said to be cancelled subsequently by executing a notarized revocation deed of power of attorney. Accordingly, this issue is answered."
22. The findings on other issues were based on issue No.1 and other relevant oral and documentary evidence and thereby, the suit was decreed by the trial Court.
23. The operative of the decree of the trial Court reads thus:
1. That both the defendant Nos.1 and 2 are directed to execute and register the sale deed in respect of the suit schedule property in favour of the plaintiff.
2. That the defendant Nos.1 and 2, their henchmen, followers, agents, workers etc., are restrained from dispossessing the plaintiff from the suit schedule property or otherwise interfere with the peaceful possession of the plaintiff over the suit schedule property.
3. That the plaintiff is at liberty to file an application if the defendants fails to execute and register the sale deed, for execution and register the same through the process of Court.
4. That the defendants also directed to pay a sum of Rs.18,939/-
to the plaintiff towards costs of the suit.
24. Defendant No.1 preferred the appeal and the appellate Court on re-appreciation of the entire evidence on record and agreed with the 13 findings recorded by the trial Court. The observation of the appellate Court at para No.18 runs thus:
"In respect of non-payment of Rs.1,70,000/- towards balance of sale consideration, admittedly cheque for Rs.1,70,000/- was not encashed by the defendant No.2 in view of the cancellation of GPA. But the respondent No.1/plaintiff has paid entire consideration and he prepared Ex.A.9 under Ex.A.2 to Ex.A.5 and also by way of cheque but as per the evidence on record, the admission of PW.1 that cheque for Rs.1,70,000/- was not encashed. So the respondent No.1/plaintiff is entitled for specific performance only on payment of Rs.1,70,000/-. He got amendment of the plaint in para No.8 A also, but the lower Court did not observe non- payment of that balance of sale consideration directly decreed the suit directing the defendants to execute the sale deed. So there must be modification of judgment and decree regarding payment of balance of sale consideration of Rs.1,70,000/-. Hence, the respondent Nos.2 to 4/plaintiff No.2 to 4 are directed to deposit the balance of sale consideration of Rs.1,70,000/- with interest @ 12% p.a. from the date of the suit to seek the specific performance against the defendants i.e. the appellant and respondent No.5. Except the said modification, the rest of the judgment of the lower Court is according to law and there is no need to interfere."
25. The operative part of the judgment incorporated in the decree, reads as under:
1. That the appeal is party allowed without costs with modification that the respondent Nos.2 to 4/plaintiffs are entitled for specific performance of agreement of sale on deposit of balance of consideration of Rs.1,70,000/- with interest @ 12% p.a. from the date of suit within two months from the date of this judgment.
2. That the appellant/defendant No.1 and respondent No.5/defendant No.2 are directed to execute and register the sale deed in favour of respondent Nos.2 to 4/plaintiffs within two months after deposit of the balance of sale consideration with interest into Court by withdrawing the same, failing which the respondent Nos.2 to 4/plaintiffs are entitled to seek specific performance by due process of law.14
3. That the rest of the judgment and decree dated 18.12.2006 passed by the III Senior Civil Judge, CCC, Secunderabad in O.S.No.119 of 1999 is confirmed.
4. That in the circumstances no costs.
26. Learned counsel for the appellants submitted that the appellate Court erroneously partly allowed the appeal filed by defendant No.1 and granted decree for specific performance, even in the absence of cross-objection or cross appeal filed by the plaintiffs. He further submitted that interference by the appellate Court has reduced the defendants to a situation worse than what they would have been and gave perverse finding by partly allowing the appeal on improper exercise of powers under Order 41 Rule 33 of C.P.C.
27. In Banarsi's case (6 supra), the Apex Court, while considering the interesting question of frequent recurrence as to the power of the appellate Court to interfere with and reverse or modify the decreed appealed against by the appellants in the absence of any cross-appeal or cross-objection by the respondent under Order 41 Rule 22 of C.P.C. and the scope of power conferred on appellate Court under Rule 33 of Order 41 of the C.P.C, at para Nos.13, 21 and 22 held as under: 15
" 13. We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff- respondent the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and- out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross- objection.
21. [Ed.: Para 21 corrected as per Official Corrigendum No. F.3/Ed.B.J./65/2003] . In the case before us, the trial court found the plaintiff (in his suit) not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or depositing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time-frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straight away a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of interference with the decree having been so interfered with 16 as to call for adjustment of equities between the respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the trial court's decree to achieve a finality which was adverse to him.
22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross- objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court."
28. Learned counsel for respondent No.3 vehemently submitted that even in the absence of appeal preferred by the plaintiffs or cross-objections taken by the plaintiffs, the appellate Court was not powerless to grant the decree which it has done in exercise of power conferred by Rule 33 of Order 41 of C.P.C.
29. A perusal of the decree and judgment of the appellate Court discloses that it has not granted any relief to the plaintiffs other than what is granted by the trial Court, except specifically recording the reasons for such modified order in the appeal as already noted above. The appellate Court has given specific reasons as to what made it to pass such an order, which has already been extracted above. The observations of the appellate Court judgement goes to show that respondent No.1/plaintiff 17 has paid entire consideration and he prepared Ex.A.9 and Ex.A.2 to Ex.A.5 and also by way of cheque, but as per the evidence on record, the admission of PW.1 that cheque for Rs.1,70,000/- was not encashed. Therefore, the appellate Court held that the plaintiff is entitled for specific performance only on payment of Rs.1,70,000/- towards balance sale consideration. It is also observed that the plaintiff also got amended the plaint in para No.8A also, but the trial Court did not observe non- payment of that balance sale consideration and due to which, the appellate Court in exercise of powers under Order 41 Rule 33 of C.P.C. without there being any cross-appeal or cross-objections filed by the plaintiff, partly allowed and decreed as noted above. The Apex Court in Banarsi's case (6 supra) while interpreting the provisions of Rule 4 of Order 41 of C.P.C. at para No.15 observed as under:
15 [Ed.: Para 15 corrected as per Official Corrigendum No. F.3/Ed.B.J./65/2003] . Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the 18 findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence.
The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.
30. It is relevant to note that though the facts and circumstances in Banarsi's case ( 6 supra) are different from the facts of the present case, the principles laid down by the Apex Court on Order 41 Rules 22 and 23 of C.P.C. and the circumstances under which the Courts are empowered to exercise their powers of interference with the decree of the trial Court, while disposing the appeals have been elucidated and this Court has 19 taken into consideration of all the principles and the observations as extracted above and by applying to the facts of the present case mainly with regard to powers of the appellate Court on passing the decree by partly allowing the appeal without there being or cross-appeal filed by the plaintiffs or any cross-objections filed by the plaintiffs directing the them to deposit balance sale consideration of Rs.1,70,000/- with interest in the Court and directing the defendants to execute registered sale deed is said to be well within the powers of the appellate Court.
31. In view of the above, I am of the considered opinion that the appellate Court is justified in allowing the appeal partly with modification and decreeing the suit filed by the plaintiffs for specific performance and confirming the rest of the judgment of the trial Court in O.S.No.119 of 1999. The said findings of the appellate Court are hereby upheld.
32. In the result, the second appeal is dismissed. There shall be no order as to the costs. As a sequel, miscellaneous applications, if any, pending in this second appeal, shall stand closed.
_______________________ A.SANTHOSH REDDY , J 06.06.2023 Nvl 20 21