Karnataka High Court
Sri M S Dharmalingu vs M/S Cm R Janardhana Trust on 23 October, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
R.F.A.No.1302/2011
BETWEEN :
SRI. M.S.DHARMALINGU
S/O M.D.SIDDARAMAIAH
SINCE DECEASED BY HIS LRs.
1. SMT.K.KALPANA,
W/O LATE M.S.DHARMALINGU
AGED ABOUT 46 YEARS.
2. SRI M.D.PRATHIK DEV
S/O LATE M.S.DHARMALINGU
AGED ABOUT 25 YEARS.
3. SMT.M.D.PRUTHVISHREE
D/O LATE M.S.DHARMALINGU
AGED ABOUT 23 YEARS.
ALL R/AT DOOR NO.1206/2,
2ND CROSS, SUBASH NAGAR,
MANDYA DISTRICT.
(CAUSE TITLE AMENDED VIDE
COURT ORDER DATED 17.04.2012) ...APPELLANTS
(BY SRI L.K.SRINIVASAMURTHY, ADV.)
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AND :
M/s C.M.R. JANARDHANA TRUST
A REGISTERED CHARITABLE TRUST
HAVING ITS OFFICE AT NO.2
3RD CROSS, 6TH A MAIN ROAD,
HRBR LAYOUT, 2ND BLOCK
BANGALORE-560043
HAVING ITS TRUSTEE NAMELY
1. Dr. K.C.SABITHA RAMAMURTHY
D/O DOMMALUR RAMAREDDY
NEELAPPAREDDY
AGED ABOUT 48 YEARS,
R/AT DOOR NO.143/3,
CMR COLONY, FIRST BLOCK,
HENNUR BANASWADI LAYOUT,
BANGALORE 560 043
2. SRI K.C.JAGGANATHA REDDY
S/O KACHARAKANAHALLI
CHIKKAMUNIYAPPA REDDY
AGED ABOUT 50 YEARS,
R/AT DOOR No.02,
KACHARAKANAHALLI,
ST.THOMAS TOWN POST OFFICE,
BANGALORE-560084
3. SRI K.R.LAKSHMEESH
S/O KADABA RAMASWAMY IYENGAR
AGED ABOUT 51 YEARS,
R/AT DOOR NO.A1,
PRAMUR BLOSSOMS, 22/1B,
GOKULAM, MYSORE-570 012
4. Dr. K.C.RADJU REDDY
S/O KACHARAKANAHALLI
CHIKKAMUNIYAPPA REDDY
AGED ABOUT 57 YEARS,
R/AT "SRI VEERABHADRA NILAYA",
CMR LANE, LINGARAJPURAM
BANGALORE-560 084
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5. SMT.SARALA RAMASWAMY REDDY
D/O P.RAJASHEKARAREDDY
AGED ABOUT 53 YEARS,
R/AT DOOR NO.586, 12TH A CROSS
J.P.NAGAR II PHASE, BANGALORE 560 007
6. SMT.KASU ANITHA RAJAGOPALAREDDY
D/O DOMMALUR RAMAREDDY
NEELAPPAREDDY
AGED ABOUT 43 YEARS,
R/AT NO.1, SRI BHAGAWATI,
YAMALUR POST, VARTHUR HOBLI
BANGALORE-560 037
7. SRI JAYADEEP
S/O KARCHARAKANAHALLI
CHIKKAMUNIYAPPA REDDY,
AGED ABOUT 25 YEARS,
R/AT DOOR NO.143/3,
CMR COLONY, FIRST BLOCK,
HENNUR BASANAWADI LAYOUT,
BANGALORE-560 043
REP. BY ITS DULY AUTHORIZED TRUSTEE:
SRI K.R.LAKSHMEESH
S/O KADABA RAMASWAMY IYENGAR
AGED ABOUT 51 YEARS,
R/AT DOOR No.A1,
PRAMUR BLOSSOMS, 22/1B,
GOKULAM, MYSORE-570057. ...RESPONDENTS
(BY SRI P.CHANDRASHEKAR, ADV.)
THIS R.F.A. IS FILED UNDER SECTION 96 R/W ORDER
XLI, RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 07.04.2011 PASSED IN O.S.NO.539/2011 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MYSORE,
DECREEING THE SUIT FOR THE SPECIFIC PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.10.2020, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, S. SUJATHA, J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment and decree dated 7.4.2011 passed in O.S.539/2007 on the file of the II Addl. Sr. Civil Judge at Mysore ('Trial court' for short) whereby the suit filed by the plaintiff has been decreed with costs.
2. For the sake of convenience the parties are referred to as per their status before the Trial Court.
3. Plaintiff has filed the suit against the defendant for the relief of specific performance of contract based on sale agreement dated 22.8.2005 in respect of property bearing Katha No.285 of Chamundi Hills notified area situated in Sy.No.4 measuring 29,040 square meters.
4. The plaint averments are that the plaintiff is a registered charitable Trust and in furtherance of its objectives, intended to purchase the suit property. The -5- defendant is the absolute owner in possession of the suit property. The plaintiff after verification of the ownership and possession of the defendant, having found satisfactory and on the promise made by the defendant that he would furnish the required documents, entered into an agreement of sale with the defendant on 22.8.2005 to purchase the suit property for a valuable sale consideration of Rs.4,80,00,000/-. In part performance of the contract, a sum of Rs.1,00,00,000/- was paid by the plaintiff to the defendant vide cheque No.291182 dated 22.8.2005 drawn on State Bank of Mysore, Lingarajapuram Branch, Bengaluru, out of total and final sale consideration of Rs.4,80,00,000/-. It was agreed that the defendant has to perform the following acts before the property is set for registration in terms of the agreement of sale dated 22.8.2005.
"a] The Vendor shall obtain katha for the schedule property from any appropriate authority i.e., the Mysore Urban Development Authority and also from the City Corporation -6- of Mysore along with up to date tax paid receipt to conclude the registration formalities before the Sub-Registrar.
b] The Vendor shall pay betterment charges and all the charges, fines, duties and expenses levied either by the Central Government or/and the State Government or/and Statutory Body/[s] or/and by the concerned Authorities at the cost and responsibilities of the Vendor only.
c] The Vendor has no objection for the purchaser for issuing 15 days paper publication in English and Kannada Dailies.
d] All the original documents shall be produced by the Vendor to the legal counsel of the purchaser for verification and legal opinion."
5. It was contended that in terms of the agreement of sale, the suit property shall be registered within one month from the date of the agreement. In the event of the defendant defaults to satisfy the conditions -7- set out in clause No.3 in respect of furnishing the documents, the defendant was obligated to register the suit property in favour of the purchaser. The plaintiff has paid substantial amount to the defendant. However the defendant did not come forward to comply with the mandatory conditions stipulated in the agreement.
6. It was further averred that almost four months short of two years the defendant has failed to satisfy the terms of the sale agreement despite the repeated requests made by the plaintiff. The plaintiff has sufficient funds and it was ever ready and willing to perform its part of contract; the plaintiff is ready and willing to deposit remaining consideration of Rs.3,80,00,000/-. The inaction on the part of the defendant to execute the registered sale deed has compelled the plaintiff to approach the Court.
7. On service of summons, the defendant has appeared through his learned counsel and filed written -8- statement admitting the execution of the agreement of sale dated 22.8.2005. However, it was contended that the defendant is not the absolute owner of the suit property. In fact the suit property belongs to the joint family of the defendant and as such he has no right in his individual capacity to sell the same. It is the plaintiff who was required to obtain katha of the suit property and permission from the concerned authority to execute the sale deed. The conditions stipulated in the agreement were not fulfilled by the plaintiff. The suit property was purchased out of joint family funds. The joint family includes his father M.D.Siddaramaiah and his sons M.S.Jaya Swamy, M.S.Dharmalingu, M.S.Ravishankar, M.S.Vijaydev and M.S.Nagachandra. The agreement to sell could be enforced only after the defendant getting permission from the Government. The defendant had applied for grant of permission which is pending consideration. The sale of suit property has been prohibited by State Government as the suit -9- property is within the domain of Nehru Loka. However, the defendant contended that he is ready to part with his share and execute the sale deed in favour of the plaintiff. Yet another defence taken was that the suit is premature and after executing the sale agreement, the Deputy Commissioner, Mysore prohibited the sale or mortgaging of suit property to anybody. It was further contended that the suit is not properly valued and the court fee paid is not sufficient. Accordingly, prayed for the dismissal of the suit.
8. Based on the pleadings, the following issues were framed by the Trial Court:
1] Whether the plaintiff proves that the defendant being the absolute owner of suit schedule property has agreed to sell the same in its favour for a sum of Rs.4,80,00,000/- and entered into agreement of sale dated 22.08.2005?
2] Whether the defendant proves that the suit schedule property is the joint
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family property of himself, M.S.Jayaswamy, M.S.Ravishankar, M.S.Vijayadev and M.S.Nagachandra?
3] Whether the plaintiff proves that it was always ready and willing to perform its part of contract?
4] Whether the defendant proves that the suit is pre-matured and there is no cause of action?
5] Whether the plaintiff is entitled for the relief of Specific Performance of Contract?
6] What order or decree?
9. To substantiate the contention of the
plaintiff, Sri.K.R.Lakshmeesh was examined as PW-1 and got marked seven documents as per Exs.P1 to P7. No evidence either oral or documentary was let in by the defendant. On appreciation of evidence, the Trial Court answered the issues as per the reasons recorded in the impugned judgment and decreed the suit with costs.
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The defendant has been directed to receive the balance sale consideration of Rs.3,80,00,000/- and execute the registered sale deed in favour of the plaintiff in respect of suit property and thereby put the plaintiff in possession of the same within four months from the date of the order. If defendant fails to execute the sale deed, the plaintiff is at liberty to get the sale deed registered through court process and get the possession of the suit schedule property by depositing sale consideration of Rs.3,80,00,000/-. Being aggrieved, the defendant has preferred this appeal.
10. Learned counsel appearing for the appellants/defendant submitted that the judgment and decree passed by the Trial Court is erroneous and based on surmises and conjunctures. The contention of the defendant that the suit property belongs to the joint family of the defendant and as such, the defendant has no title to execute the sale deed in his individual
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capacity has been ignored by the Trial Court. The defendant not being the absolute owner of the suit property cannot alienate it in favour of the plaintiff. No valid title could be passed on to the purchaser. The Trial Court directing the defendant to execute the registered sale deed in favour of the plaintiff would go contrary to the established principles of law. Insofar as the defendant not possessing the valid title to transfer the same, learned counsel argued that the suit property is the subject mater of acquisition, the Mysore Urban Development Authority has issued Notification No.LAQ [5] CR 540/2005-06 dated 3.4.2006 under Section 17(1) of the Karnataka Urban Development Act to acquire the suit property. In the light of the said preliminary Notification, the defendant is prohibited from alienating the suit property without the previous consent of the State Government. In the absence of No Objection Certificate issued by the Government for sale of the suit property, the agreement to sell the property has
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remained unenforceable and unexecutable contract indeed it is a frustrated contract.
11. Nextly, it was argued the suit property is located in the foot of Chamundi Hills. The State Government has proposed to keep the said land as open space for Nehru Loka. The order dated 11.6.2007 passed by the Deputy Commissioner prohibiting the defendant from selling any land including the schedule property was not taken note of by the Trial Court. In view of the lawful order passed by the revenue Authorities restraining the defendant from alienating the suit property in favour of the plaintiff, the defendant could not perform his part of the contract. No reasonable opportunity was provided to the defendant to put forth his case. The Trial Court proceeded to pass the impugned judgment and decree in a hasty manner. The Trial Court merely relying upon the testimony of PW-1 decreed the suit which indeed is unjustifiable.
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Hence, the learned counsel prayed for setting aside the impugned judgment and decree allowing the appeal.
12. Learned counsel for the defendants placed reliance on the following judgments.
1] WADI V/S. AMILAL AND OTHERS [(2015) 1 SCC 677] 2] CITADEL FINE PHARMACEUTICALS V/S. RAMANIYAM REAL ESTATES P. LTD., AND ANOTHER [AIR 2011 SC 3351] 3] VIMALESHWAR NAGAPPA SHET V/S. NOOR AHMED SHERIFF AND OTHERS [AIR 2011 SC 2057] 4] ZARINA SIDDIQUI V/S. A.RAMALINGAM ALIAS R.AMARNATHAN [(2015) 1 SCC 705] 5] GARRE MALLIKHARJUNA RAO [DEAD] BY LEGAL REPRESENTATIVES AND OTHERS V/S. NALABOTHU PUNNIAH [(2013) 4 SCC 546] 6] MRS. S. RAJALAKSHMI AND OTHERS V/S. MRS. SARADAMANI KANDAPPAN AND ANOTHER [AIR 2011 SC 3234]
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7] SHANTILAL GULABCHAND MUTHA V/S. TATA ENGINEERING AND LOCOMOTIVE COMPANY LIMITED AND ANOTHER [(2013) 4 SCC 396].
13. Learned counsel for the defendant has filed I.A. application under Order 41 Rule 27 of CPC to produce additional documents in order to establish that the defendant M.S.Dharmalingu was under medical treatment during 2011. He died on 28.2.2012. Marriage invitation of Smt.M.R.Jamunarani, discharge summary of the defendant M.S.Dharmalingu issued by Adarsha Nursing Home dated 10.4.2011, preliminary Notification dated 3.4.2006 issued by the Mysore Urban Development Authority, letter dated 11.6.2007 issued by the Deputy Commissioner, Mysore District, order of this Court in W.P.No.22658-22662/2015 and Connected Matters dated 19.6.2020 are placed along with I.A.1/2020. Learned counsel referring to these documents vehemently argued that the plaintiff having knowledge of these vital aspects suppressed the same in
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order to succeed in the suit. Suit for specific performance being an equitable and discretionary relief, the plaintiff having suppressed the material facts is not entitled to the relief claimed. Accordingly, sought for allowing the appeal.
14. Per contra, learned counsel appearing for the plaintiff submitted that the original defendant Dharmalingu who was the absolute owner of the suit property has entered into an agreement of sale dated 22.8.2005 (Ex.P2) with the plaintiff agreeing to sell the property for a consideration of Rs.4,80,00,000/- and has received Rs.1,00,00,000/- on the date of execution of the sale.
15. It was submitted that Clauses [6] to [10] of the Agreement to sell establishes that the defendant, late Dharmalingu is the absolute owner of the suit property. Despite the plaintiff had issued Ex.P3 notice dated 26.12.2006 demanding execution of registered
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sale deed, the same was duly served on the defendants vide endorsements at Ex.P3, Ex.P4 and Ex.P5, no reply was made by the defendant. In the written statement filed, the defendant has candidly admitted execution of Ex.P2 - the agreement of sale dated 22.08.2005 but has taken the defence that the schedule property is the joint family property of himself and his brothers M.S.Jayaswamy, M.S.Ravishankar, M.S.Vijayadev and M.S.Nagachandra. However, he has admitted at para 8 of the written statement that the defendant is ready to part with his share and execute a sale deed in favour of the plaintiff. Further, in para 11 of the written statement, it was stated that the defendant demands the plaintiff to get registration as stipulated in the agreement.
16. The plaintiff has let in his evidence on 29.05.2010. Further evidence was let on 31.05.2010 and on 04.10.2010. The plaintiff got marked Ex.P1 to
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Ex.P6. The matter was posted for the cross-examination of the plaintiff on various dates from 17.06.2010 to 04.10.2010. Except on 05.07.2010 despite the plaintiff having tendered himself for cross-examination on various dates, the defendant failed to cross-examine him. As a result of which, an order was passed on 04.10.2010 taking the cross-examination of the plaintiff as nil and the matter was posted for evidence of the defendants to be tendered on 19.10.2010. On 19.10.2010, though the application filed by the defendant to re-call the order dated 04.10.2010, was allowed on the same day providing an opportunity to the defendant to cross-examine the plaintiff as a last chance, the defendant has failed to cross-examine the plaintiff on various dates from 25.10.2010 to 28.03.2011. Accordingly, the defendant neither cross- examined the plaintiff nor tendered his evidence, as a result of which, the evidence of the defendant was taken as nil and was posted for arguments. Defendant was
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afforded with 27 opportunities which he willfully failed to avail. But strangely, it is alleged that the judgment and decree is passed without affording an opportunity. The allegation of the defendant is baseless as could be seen from the various dates provided to the defendant to cross-examine the plaintiff and to tender his evidence.
17. Nextly, it was argued that the defendant claims that the suit property is a joint family property contrary to the recitals in Ex.P2, the agreement to sell. The notification referred to by the defendant was issued under Section 17[1] of the KUDA Act for formation of park and open space, wherein the name of the defendant is found at Sl.No.67. However, presently the said proceedings are dropped. It was further argued that the document produced by the defendants namely, an order dated 26.05.2015 passed by the Deputy Commissioner in RRT.540-2014-2015 directing the Revenue Authorities to maintain the lands in Sy.No.4 of
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Kurubarahalli and other areas as 'B' Kharab lands including the lands of the appellants discloses that the name of the appellant No.1[a] Smt.Kalpana is found at Sl.No.22 and she has contested the case as an absolute owner of land. Against the order passed by the Deputy Commissioner dated 26.05.2015, the appellant No.1[a] had filed W.P.Nos.25462-25467/2015 before this Court and the said writ petitions were listed with connected matters which further fortifies the fact that the defendant now represented by his legal heirs are owners of the suit property. This Court in the said writ petitions, has quashed the order dated 26.05.2015 passed by the Deputy Commissioner. This piece of evidence establishes the fact that the suit property is the self acquired property of the appellants and it is not the joint family property as averred in the written statement and the appeal memo. 27 opportunities were provided on different dates to the defendant to cross- examine the plaintiff or to tender their evidence, neither
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the defendants nor his counsel were present in the Court. If the defendant was not keeping well, nothing stopped his advocate to appear before the Court and assign reasons for the absence of the defendant. The medical records now sought to be produced relates to the period beginning from 25.03.2011. The judgment and decree is dated 07.04.2011. Aggrieved by which the defendant had traveled all the way from Mysuru to Bengaluru and had sworn an affidavit on 05.09.2011 and has taken effective steps to file the appeal. The defendant has neither averred about the acquisition of the suit property by the Mysuru Urban Development Authority under KUDA Act in the written statement filed by him nor by legal representatives in the writ petition proceedings wherein the order of the Deputy Commissioner dated 26.05.2015 was challenged. The aforesaid facts would reveal that the appellants have not approached the Court with clean hands.
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18. The Trial Court having considered the material evidence on record more particularly, in view of the admission of the execution of Ex.P2 - agreement to sell and readiness and willingness of the plaintiff to get the sale deed registered in its name as well as the huge sum of Rs.1,00,00,000/- being paid as earnest money, the receipt of which has been duly acknowledged by the defendant, has decreed the suit directing the defendant to execute the sale deed and the same requires to be confirmed by this Court dismissing the appeal.
19. We have carefully considered the submissions of the learned counsel appearing for the parties and perused the original records.
20. The execution of Ex.P2 - agreement to sell dated 22.08.2005 entered into by the defendant with the plaintiff inter alia agreeing to alienate the suit property for a sale consideration of Rs.4,80,00,000/- is not disputed. Likewise, the receipt of sum of
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Rs.1,00,00,000/- paid by cheque No.291182 dated 22.08.2005 has also been admitted by the defendant. The main grounds on which the challenge is made to the judgment and decree of the Trial Court is that the suit property is the joint family property of the original defendant Sri.M.S.Dharmalingu and his brothers namely, M.S.Jayaswamy, M.S.Ravishankar, M.S.Vijaydev and M.S.Nagachandra. Thus, the defendant having no absolute right to transfer the suit property, the judgment and decree passed by the Trial Court is unexecutable or unenforceable. In order to establish this fact, the defendant has neither cross- examined the plaintiff nor tendered his evidence. However, it has been categorically admitted in Ex.P2 dated 22.08.2005 that he is the absolute owner and is in possession of the suit property. The covenants of the relevant paras of Ex.P2 are quoted hereunder:
"1. The Vendor is the absolute owner and is in possession of land bearing Khatha
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No.285 of Chamundi Hills Notified Area, situated in Survey No.4 of Kurabarahalli village, Kasaba Hobli, Mysore Taluk, more fully and particularly described in the schedule hereunder written and hereinafter for the sake of convenience referred to and called as the "Schedule Property".
2. The title to the Schedule property is as follows;
a] Sri.M.S.Dharmalingu, had purchased the schedule property from
Smt.G.Saraswatibai, vide Deed of Sale dated 18.11.1982 and the same was registered as document No.31, Volume No.704, Pages 36 to 38 of Book I dated 19.11.1982 at the Office of the Sub-registrar, Mysore Taluk, for the valuable consideration of Rs.20,000/- [Rupees Twenty Thousand Only].
b] Prior to the sale of the schedule property to Sri.M.S.Dharmalingu,
Smt.G.Saraswathibai, applied to Government of Karnataka, Housing and Urban Development Department, Bangalore for
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exempting the vacant land held by her in excess of ceiling limit i.e., 24282 square meters or 6 acres of land situated in Survey No.4 of Kurubarahalli village, Mysore and the Government of Karnataka vide its Order No.HUD 134 CR I 80 dated 21.05.1982.
exempted Smt.Saraswathibai from holding excess land under Clause (b) of sub-section (1) of Section 20 of Urban Land [Ceiling and Regulation] Act, 1976 and also permitted Smt.G.Saraswathi to sell the schedule property to the Vendor, with the purpose of using the schedule property for diary and sericulture. Further, the Housing and Urban Development Department vide its Letter No.Va Na E 86 TMD 93 dated 22.04.1993 Ordered the President, Chamundi Hills Notified Area Committee, to make khatha in the name of the Vendor. The Chamundi Hills Notified Area Committee, made khatha in the name of the Vendor and collected taxes up to 1994-95 of the schedule property.
c] The Vendor is in possession and enjoyment of the schedule property and is
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having full right, title and interest in the schedule property and the Vendor is entitled to dispose of the schedule property in the any manner the Vendor may choose. The Vendor hereby declares that the schedule property is the self-acquired property of the Vendor and the same is not the asset of any partnership firm or any company.
d] The Vendor has offered to sell the schedule property to the Purchaser, for his family necessities and for the consideration mentioned hereunder and the Purchaser has accepted the offer of the Vendor subject to condition precedents mentioned hereunder and agreed to purchase the schedule property for the consideration mentioned hereunder.
2. Title: That, the Vendor assures and undertakes that the schedule property is free from all encumbrance, court attachments, pending litigation, minor claims, notice of acquisitions etc. Also, the Vendor undertakes that if due to any reason, it is found that any encumbrance on the schedule [Emphasis supplied]
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property is existing, the Vendor shall also discharge such encumbrance/[s]..
3. Documents: That, the Vendor has handed over the photocopy of the original documents to the Purchaser and the Purchaser acknowledges the receipt of the same. The Vendor undertakes to obtain the following which are the condition precedents for the registration of the Sale Deed.
a) The Vendor shall obtain Khatha for the schedule Property from any appropriate authority with up to date tax payment receipt to conclude the registration formalities before the Sub-Registrar.
b) The Vendor shall pay betterment charges and all the charges, fines, duties and expenses levied either by the Central Government or/and the State Government or/and Statutory Body/[s] or/and by the concerned Authorities at the cost and responsibilities of the Vendor only.
c) The Vendor shall obtain Encumbrance Certificate for a period of 30 years.
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d) The Vendor has no objection for the Purchaser for issuing 15 days paper publication in English and Kannada Dailies.
e) All other documents, permissions, clearances as required by the legal counsel of the Purchaser shall be produced by the Vendor as and when called upon.
f) All the original documents, shall be produced by the Vendor to the legal counsel of the Purchaser for verification and legal opinion. "
"6. OUTGOING: That, the Vendor shall pay all outgoing pertaining to the schedule property including all taxes, rates, cesses, etc., payable to the Government of Semi Government or Local Body or Authority till the date of registration of the sale deed.
7. EXECUTION AND EXPENSES:
That, upon full payment of the amount of sale consideration, the Vendor shall execute sale deed in favour of the Purchaser or to the Nominee [s] or Assignee [s] of the
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Purchaser. The expenses for the registration of sale deed such as stamp duty, registration fees and other expenses shall be borne by the Purchaser or its Nominee [s] or Assignee [s].
8. UNDERTAKING: That, the Vendor undertakes that the Vendor shall not transact or deal in the schedule property either by way of agreement for sale or sale deed of lease, mortgage or otherwise do or cause to be done any act in respect of the schedule property. Also the Vendor hereby declares that hitherto the Vendor has not entered into any agreement for sale with any person[s].
9. MEASUREMENT: That, the Purchaser shall be entitled to measure the schedule property at its own cost and expenses and subsequently if it is found that the measured area is more or measured area is less, when compared to the measurements mentioned in the schedule property written, then in such eventuality, the consideration mentioned above shall vary accordingly.
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10. SPECIFIC PERFORMANCE: That, the parties hereto shall be entitled for specific performance of the contract."
21. The covenants in the agreement to sell mentioned as aforesaid clearly establishes that the defendant was the absolute owner of the suit property. The defence set out by the defendant - Dharmalingu in the para 8 of the written statement reads thus:
"The defendant is ready to part with his share and execute the sale deed in favour of the plaintiff."
Para 11 of the written statement reads thus:
"The defendant demands the plaintiff to get registration as stipulated in the agreement."
22. It is apparent that the notification dated 03.04.2006 issued by the Mysuru Development Authority under Section 17[1] of the Karnataka Urban Development Authority Act indicates the name of the defendant Sri.M.S.Dharmalingu as the
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Khatedar/Anubhavdar at item No.67. Similarly, the order dated 26.05.2015 of the Deputy Commissioner directing the Revenue Authorities to maintain the lands in Sy.No.4 of Kurubarahalli and other areas as 'B' Kharab lands being assailed by the appellant No.1[a], the subject matter of W.P.Nos.25462-25467/2015 before this Court demonstrates that the original defendant M.S.Dharmalingu was the absolute owner of the suit property. No contention has been taken by the appellant No.1 in the said writ petition proceedings that the original defendant M.S.Dharmalingu was not the absolute owner of the property and the suit property belongs to the joint family property. It is not even the case of the appellant No.1 in the said writ petition proceedings that the suit property has been acquired under the provisions of the KUDA Act by the Mysore Development Authority. Hence, the arguments of the learned counsel for the defendant that the suit property is a joint family property and as such the agreement to
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sell at Ex.P2 is unenforceable, is not established by the defendant. The Trial Court has rightly answered the said issue against the defendant.
23. As regards the arguments of not providing sufficient opportunity to the defendant to cross-examine the plaintiff and tender evidence on his behalf is wholly unacceptable for the reason that the plaintiff has let in his evidence on 29.05.2010 and further evidence was adduced by the plaintiff on 31.05.2010 and again on 04.10.2010. As could be seen from the order sheet, the matter was posted for the cross-examination of the plaintiff on 17.06.2010, 21.06.2010, 05.07.2010, 13.07.2010, 30.07.2010, 18.08.2010, 01.09.2010, 06.09.2010, 16.09.2010, 22.09.2010, 28.09.2010 and on 04.10.2010, plaintiff's cross-examination was taken as nil. Except on 05.07.2010, 13.07.2010, 30.07.2010 and 22.09.2010, the plaintiff was present before the Court on all the hearing dates but the defendant failed
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to cross-examine him. On the application submitted by the defendant/appellant No.1 on 19.10.2010 to re-call the order dated 04.10.2010, the application was allowed and the defendant was permitted to cross-examine the plaintiff as a last chance. It is noticed from the order sheet that the matter was listed again on 25.10.2010, 02.11.2010, 16.11.2010, 29.11.2010, 06.12.2010, 10.12.2010, 18.01.2011, 27.01.2011, 31.01.2011, 16.03.2011, 21.03.2011 and 28.03.2011. Except on 02.11.2010, 18.01.2011, 27.01.2011, 16.03.2011 and 21.03.2011 the plaintiff and his counsel were present before the Court, the defendant has not availed the opportunity to cross-examine the plaintiff and tender his evidence. Thus, it is evident that the defendant though afforded with 27 opportunities, has failed to defeat the cause of the plaintiff.
24. In a suit for specific performance, the conduct of the parties plays crucial role. Merely making
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allegations that no reasonable opportunity was provided to cross-examine the plaintiff and tender the evidence by the defendant would not be suffice unless the same is established. As aforesaid, providing of multiple opportunities to the defendant not being availed despite the appellant No.1 prosecuting the writ petition before this Hon'ble Court would establish the negligence on the part of the defendant in conducting the case. On this ground, the Court cannot arrive at a conclusion that the defendant has a good case to defend the relief sought by the plaintiff in view of the admission of execution of agreement to sell dated 22.08.2005 and acknowledging the receipt of a sum of Rs.1,00,00,000/- towards the earnest money.
25. The judgments referred to by the learned counsel for the defendant are discussed hereunder:
In the case of Wadi supra, the Hon'ble Apex Court while considering Order 41 Rule 27 of CPC, held that
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the general principle incorporated in Sub-Rule[1] is that the parties to an appeal are not entitled to produce additional evidence [oral or documentary] in the Appellate Court to cure a lacuna or fill up a gap in a case. The exceptions to the principle are enumerated there-under in Clauses[a], [aa] and [b]. The Hon'ble Court concerning with Clause[b], an enabling provision which says that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of Appellate Court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, Clause[b] enables to adopt that course. Invocation of Clause[b] does not depend upon the vigilance or negligence of the
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parties for it is not mean for them. It is for the appellant to resort to it when a consideration of a material or record, it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.
In M/s. Citadel Fine Pharmaceuticals supra, it is held thus:
"49. It is clear from Section 9 of the Specific Relief Act, 1963 that Section 55 of The Indian Contract Act, 1872 enables a defendant against whom suit for the specific performance has been filed to raise the defence under Section 55 of the Indian Contract Act.
50. Section 55 of the Indian Contract Act which deals with a contract, in which time is of essence is as follows:-
"Section 55 - Effect of failure to perform at a fixed time, in contract in which time is essential. - When a party to a contract promises to do a certain thing at or before a
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specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract."
55. In this connection we may refer to the Principle of Equitable Remedies by I.C.F. SPRY, Fourth Edition (Sweet & Maxwell, 1990). Dealing with the question of `Clean Hands' the learned author opined that where the plaintiff is shown to have materially misled the court or to have abused its process, or to have attempted to do so, the discretionary relief of specific performance can be denied to him. In laying down this principle, the learned author relied on a decision of the English Court in the case of Armstrong v. Sheppard & Short Ltd. (1959) 2 Q.B. 384 at page 397. (See SPRY Equitable Remedies page 243).
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57. Following the aforesaid tests, this Court is of the opinion that the suppression of the fact that the plaintiff refused to accept the cheque of Rs.10 lac sent to it by the defendant under registered post with A.D. in terms of Clause 9 of the Contract is a material fact. So on that ground the plaintiff-purchaser is not entitled to any relief in its suit of specific performance."
In Shantilal Gulabchand Mutha supra, the Hon'ble Apex Court referring to Bogidhola Tea & Trading Co. Ltd., V/s. Hira Lal Somani [(2007) 14 SCC 606], has held that the relief under Order 8 Rule 10 CPC is discretionary and Court has to be more cautious while exercising such power where the defendant fails to file the written statement. Even in such circumstances, the Court must be satisfied that there is no fact which needs to be proved in spite of deemed admission by the defendant and the Court must give reasons for passing such judgment. However, short it be, but by reading the said judgment, a party must
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understand what were the facts and circumstances on the basis of which the Court must proceed and on what reasoning the suit has been decreed. It was rendered in the context of the Trial Court while deciding Suit No.1924 of 1988, decreed the suit vide judgment and decree dated 12.11.2003 [Telco Limited V/s. Deccan Co-operate Urban Bank Limited and others] and the same reads as under:
"Advocate for the plaintiffs is present. Nobody is present for the defendants. The matter is on board for proceeding against the defendants for want of written statement. Suit is of 1988. So far no written statement is filed. Therefore, there shall be decree in favour of the plaintiffs and against the defendants under Order VIII Rule10 of the Code of Civil Procedure for a sum of Rs.9,99,388.30 with interest on the amount of Rs.5,66,000/- at 12% p.a. from the date of the suit till realization and costs. Prayer (a) only of the plaint is granted in the above terms. Decree be drawn up accordingly."
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In such circumstances, the Hon'ble Apex Court having observed that the Court did not even considered it proper to examine the case prima facie before passing the decree, as is evident as a Trial Court failed to meet the parameters laid down by the Court to proceed under Order 8 Rule 10 of CPC, the judgment and decree has been set aside.
26. Applying the principles of law enunciated by the Hon'ble Apex Court as aforesaid, even considering the additional evidence placed on record along with the application - I.A-1/2020 by the defendant/legal representatives of the defendant, we do not find any irregularity or infirmity in deciding the issues framed by the Trial Court. It is well settled that pleadings are the foundation in the suit. In the written statement, defendant has candidly admitted the execution of the agreement to sell dated 22.08.2005 - Ex.P2 and the receipt of Rs.1,00,00,000/- as earnest money towards
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the sale of the suit property. The arguments now canvassed are that the plaintiff was aware of the acquisition proceedings initiated by the Mysuru Development Authority under the provisions of KUDA and has suppressed the material facts. As such, he is not entitled for equitable discretionary relief of specific performance. We are afraid to accept the said argument, basically no such defence was taken by the defendant in the written statement. The defendant was not prohibited to bring the true facts before the Court at the first instance while filing the written statement. Even in the appeal proceedings, there is no dispute regarding the execution of the agreement to sell - Ex.P2 by the defendant in favour of the plaintiff and receipt of advance amount of Rs.1,00,00,000/- which is quite a substantive amount, having regard to the total sale consideration of Rs.4,80,00,000/-. As stated supra, the appellant No.1 has not taken any contention in the writ petition filed by her challenging the order of the Deputy
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Commissioner to treat the suit property as joint family property. The order passed in W.P.Nos.22658- 22662/2015 and Connected Matters [D.D. 19.06.2020] would certainly indicate that the appellant No.1 having prosecuted the petition in the capacity of the legal representative of M.S.Dharmalingu, not representing the joint family consisting of M.S.Dharmalingu and his brothers, the argument that suit property is a joint family property and as such not available for execution cannot be countenanced.
27. As could be seen from the judgment of the Writ Court in Writ Petition Nos.22658-22662/2015 and Connected Matters wherein, Smt.Kalpana Dharmalingu
- appellant No.1 herein, was petitioner No.18, the challenge was to the order dated 26.05.2015 passed by the Deputy Commissioner wherein the appellant No.1 along with the other petitioners claimed interest and rights over their respective lands involved therein, the
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subject suit property was claimed to be the property of original defendant. The Government having been appraised of necessity of removal of "B Kharab" in the revenue and survey records of the lands which were the subject matter of the writ petitions had directed the Authorities to initiate necessary proceedings in that regard. No whisper is made about the proposed acquisition of land under the provisions of the KUDA Act. The learned Single Judge on extensive analysis of the matter setting aside the order of the Deputy Commissioner dated 26.05.2015 directed the Revenue Authorities/Municipal Authorities to consider making appropriate entries in the names of the petitioners upon representations being made in accordance with law and as per the applicable procedure; the Revenue entries including mutation wherever effected in the name of the Government pursuant to the order of the Deputy Commissioner dated 26.05.2015 are set aside. Further, it has been
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directed that the entry 'B Kharab' wherever found in the name of the petitioners therein to be deleted in the light of setting aside of the orders impugned therein dated 26.05.2015 passed by the Deputy Commissioner. Indeed, this order of the Writ Court would certainly negate the contention of the appellants that the suit property is the joint family property and is not available for executing the specific performance of contract or it is unexecutable.
28. It is significant to note that in the agreement of sale it has been mentioned that the defendant has purchased the suit property from Smt.Saraswathi Bai who had applied to the Government of Karnataka, Housing and Urban Department, Bengaluru for exempting the vacant land held by her in excess of ceiling limits i.e., 24282 square meters or 6 acres of land situated in Sy.No.4 of Kurubarahalli and accordingly, the Government of Karnataka, vide its
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order No.HUD134CR1-80 dated 21.04.1982 exempted Smt.Saraswathi Bai and permitted her to sell the suit property to M.S.Dharmalingu. This recital in the Ex.P2 fortifies that the defendant had purchased the suit property from his vendor Smt.Saraswathi Bai in his individual capacity not representing the joint family. Moreover, it is categorically declared that suit property is the self-acquired property of the Vendor.
29. Readiness and willingness of the plaintiff is also established in terms of the legal notice issued on 26.12.2006 - Ex.P3 and the postal receipts Ex.P4 and Ex.P5 calling upon the defendant to execute the registered sale deed. It is not even the case of the defendant that the plaintiff was not financially sound to perform his part of the contract i.e., to get the registered sale deed executed by paying sale consideration of Rs.3,80,00,000/-. The additional documents sought to be filed by the defendant/appellants would rather come
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to the assistance of the plaintiff rather than the defendant. Even adverting to the said documents as aforesaid, the case of the defendant would not stand on a better pedestal or it cannot improve the case so as to reverse the impugned judgment and decree.
30. In the recent judgment of the Hon'ble Apex Court in the case of Ferrodous Estates [Pvt.] Ltd., V/s. P.Gopirathnam [Dead] and Others, [Civil Appeal No.13516/2015, D.D. 12.10.2020], the Hon'ble Apex Court has categorically observed that Section 20, as it stood prior to the amendment, makes it clear that the jurisdiction to decree specific performance is discretionary; but the said discretion is not arbitrary but has to be exercised soundly and reasonably, guided by judicial principles, and capable of correction by a court of appeal. Significantly, under Clause [a] of Sub- section [2], what is to be seen is the terms of the contract or the conduct of the parties at the time of
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entering into the contract. Only exception to the hardship principle contained in Clause [b] of Sub- section [2] is said to be where hardship results from an act of the plaintiff subsequent to the contract. Given Section 20, the Courts have uniformly held that mere escalation of land prices after the date of filing of the suit cannot be the sole ground to deny specific performance. The original defendants/appellant having failed to prove any default on the part of the plaintiff, cannot take undue advantage of not tendering evidence or cross-examining the plaintiff. It is trite law that the Court can come to the rescue of the litigants who are vigilant about their rights. The original defendant Dharmalingu after filing the written statement, slept over the matter even not disclosing about the Notification issued under the KUDA Act, now at this juncture, cannot blame the plaintiff on the pretext of suppression of material facts.
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31. For the reasons and discussions made hereinabove, we are of the considered view that the impugned judgment and decree does not suffer from any infirmity or irregularity; the appreciation of evidence by the Trial Court is not vitiated under any score. On re-appreciation, we confirm the same.
32. The defendant shall receive the balance sale consideration of Rs.3,80,00,000/- and execute the registered sale deed in favour of the plaintiff in respect of the suit property and thereby put the plaintiff in possession of the same within eight weeks from the date of receipt of the order. As observed by the Trial Court, if the defendant fails to execute the sale deed, the plaintiff is at liberty to get the sale deed registered through court process and get the possession of the suit schedule property by depositing sale consideration of Rs.3,80,00,000/-.
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In the result, appeal stands dismissed. No order as to costs.
All the Pending I.A's stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE Dvr:/NC.