Karnataka High Court
Sri R Dinesh Kumar vs Smt Lakshmamma on 20 April, 2012
Author: K.Govindarajulu
Bench: K.Govindarajulu
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IN THE I IIGI I COURT OF KARNATAKA Al' BANGALORE
I)Al'El) TI 115 'Ii IE 2W! f) 4 20 1 2
W OF APRIl
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BEFORE
Tn E HON '13LE M R.J US1'IC E K GOVIN I)ARAJ ULU
RFA NO.360? 2008
BETnEN:
SRI.RJ)INESII KUMAR
SON OF ROOPCIIANI).
AGED ABOUT 43 YEARS.
PROP: JAI ENTERPRISES.
NO.204. 2ND FLOOR.
SURM GANGA ARcADE.
NO.332/7. I4'" CROSS.
2N1) BLOCK. JAYANAGAR.
BANGALORE- 560011. . . .APPELLANT
(BY SRLV.VIJAYALAKSHMI, VISHN UK(JMAR-ADVS)
AND:
1 .SMT. LAKSHMAMMA,
WIFE OF LATE NARASIMI TAIMI.
AGED ABOUT 55 YEARS.
2. SMT.AN UR'\DIIA.
AGED ABOUT 35 YEARS.
3. SMT.VIJAYA.
AGED ABOUT 32 '(EARS.
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JUDGMENT
The plaintiff in O.S.No.4003/2007 on the file of the Cliv Civil Judge. liangalore is the appellant in this appeal under Sect ion 96 of Code of Civil Procedure.
2. The parties will be referred according to their ranking found in the Court below for convenience.
3. The case of the plaintiff is for an order of permanent Injunction restraining the defendants, their men, agents, persons, claiming through them from Interfering or alienating the plaint schedule properties in favour of the third parties and for such other reliel. In the schedule to [lie plaint. item no. I Is described as the property In sy.no.6 measuring 1 acre 18 guntas of Lottegollahalli village. Item no.2 Is described as property in 53.110.9/ 1 of Lottegollahalli village measuring 1 acre 1 7 guntas.
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4. The case of the Plaintiff Is that defendants are the OWflCrS Of I lie plait it sd jedule l)10Pfli ics. '11w deIi'ndants have acquired the title to the property through Naraslmhaiah. In turn, Naraslmhalah has acquired title to the said property by an order of the Land Tribunal dated 27.7.2002, insofar as item no.1 Is concerned. Insofar as item no.2 Is concerned, Narasimhaiah has acquired the title to the property in a stilt for specific performance filed by him. It is the further case of the plaintiff after the demise of Narasimhaiah. the defendants have got katha changed/mutated to their names in the revenue records. '[hey are In peaceful possession and enjoyment of the properties.
5. It is 11w fUrther case of the l)laifltifl that in the year 2006, the defendants approached the plaintiff offered to sell the plaint schedule properties and after 5 S discussion. the price was lixed and in pursuance of a discussion. an agreement ol sale dated 2.2.2006 was registered at the office of the Sub-Registrar. On the date of the agreement of sale. the plaintiff has paid a sum of Rs.60 iakhs and 11w defendants have agreed to sell the plaint schedule properties in pursuance of the agreement of sale. While so, the defendants are trying to alienate the properties in favour of the third parties. So. plaintiff sought for a decree of permanent injunction.
6. The first and 5th detèndants have filed common writ ten statement. It is pleaded by t hem that the plaintiff has suppressed the important and material facts. At no point of time, the defenclanr.s have approached the plaintiff tbr an offer to sell the property. It Is further pleaded that it is the plaintiff who has coaxed and Instigated the defendants through the 6 powerful politicians and higher officials of the 13L)A contending that he will get the NOC In regard to the plaint schedule J)ropert ics from Bl)A and has taken signatures of the defendants by playing all types of tricks. The so-called agreement relied by the l)laiItifl is not binding and' the case of the plaintiff Is not maintainable. Further. his substantiated in paragraph 13 that the plaintiff has suppressed the happenings till April 2007. The defendants approached the I3DA and came to know about the endorsement issued by it to sell the property and the endorsement dated 25.6.2007 Is relied to seek for ternilnation of the agreement and plead for dismissal of the suit. Reliance Is placed on the notice dated 25.6.2007 as a document under rljcl1 they seek to cancel the agreement of sale.
7. On the pleadings. the learned trial Judge has framed Issues and permitted the parties to lead 7 at evidence. The plaintiff has entered the witness box and Is examined as P.W. 1. Exs.P. 1 t P. ii are marked. In reply. Naraslmha Murthy - 5th defendant Is examined as D.W. I. Reply notice, endorsement and another notice is marked as Exs.D. 1 to 1).3. The learned trial Judge disbelieved the case of the plaintiff and rejeete(l the case of plaintiff for permanent injunction, thereby dismissed the suit answering the following issues with the following reasons:
ISSUES:
1. Whether plaintiff proves that the delendant s were the lawful owners of the suit schedule Property as on the date of the sale agreement dated;02. 02.2006?
2. Whether the plaintiff lii rther proves alleged obstruction?
3. Whether the Plaintiff is entitled for the relief claimed?
4. What decree or order?
FINDiGS:
Issue NC). 1 in the negative Issue No.2 in the negative Issue No.3 : in the negative 8 Tssue No.4 : As per the flnal order.
8. The learned Advocate for the Plait till Smt.V.ViJayalakhsmi vehemently contends as under:
The case of the plaintiff is defendants have received a sum of Rs.60 lakhs anti executed the agreement of sale agreeing to sell the property in favour of the plaintiff. While so, giving a go-bye to the agreement of the plaintiff, the defendants are t tying to alienate the property in favour of third parties. So, the plaintiff is obliged to file the suit for an order not to alienate the property. Further substantiates that. unless the I3DA gives a clearance certificate in the form of NOC. the vendors will not get full title to the property. So, the action of the defendants in trying to alienate the property in favour of third patties during the subsistence of agreement of sale in favour of the plaintiff Is bat! in law. The learned trial Judge has not 9 0 ('01 isklerecl I liese import ant aspects of the case. hence. pray for decree of permanent injunction.
9. The learned Advocate for the defendants on tim other hand substantiates the defence with the following submission:
A careful consideration of SectIon 41 of the Specific' Relief Act would probablize. in a simple suit for permanent injunction when there Is a equally effIcacious relief, like specilie performance. suit for permanent injunction, is not maintainable. On this simple question of law alone, the suit Is liable to be dismissed. The Ccnirt need not go into 01 her aspects of the case at all.
10. The learned Advocate places reliance on:
(i)SATISI-i I3AHADUR Vs.l-IANS RA.J ANt) OThERS reported In AIR 1980 Punjab and Haryana 351 wherein 10 £ the Punjab and Haryana High Court has held that vhen the plaintiff is eligible br seeking equally efficacious relief, simple suit for permanent Injunction is not maintainable.
11. The other ruling relied is RAJENDRA KIJMAR Vs.MAHENDRA KUMAR MITTAL reported in AIR 1992 Aflahabad 35 wherein, tile Aliahabad High Court has held that when there is a equally efficacious relief. the simple suit thr injunction is not maintainable. Similar is the ratio in the other ruling relied by the learned Advocate in JASMER SINGH AND OTHERS Vs.KANWALJIT SINGE! AND ANOTHER reported in AIR 1991 Punjab and Haryana 194.
1 2. The learned Advocate lör the defendants also places reliance on the ruling of the Hon'ble Apex Court in the ease of VANVH3HAG KARAMCEIARI GRIFIA 11 0 NTRMAN SAl TAKARI SANSTHA MARYADIT(REGD.) Vs.RAMESH CHANDRA reported In AIR 2011 SC 41, to contend that under Order 11 Rule 2. a suit has to be framed in regard to all the aspects and any deviations Is not )1 ermissible.
13. According to the learned Advocate for the defendants, the stilt basically' is not maintainable, in addition to It. when the plaintiff has come up with a half hearted claim, the Court need not go into the transaction of payment of Rs.60 lakhs or othc'nvise, claimed by the plaintiff. So seek for dismissal of the appeal thereby seek to uphold the judgment recorded by the learned Civil Judge.
14. Carefully considered the material sit bmission. rrlw points that arise for consideration are as under:
(i) Whether the facts disclose a completed contract? 12
a (11) Vhether the approach of the learned trial Judge in (Iisnt I ssit ig the suit reqi tires ix iterference?
(iii) if so what order '?
15. The points 1 and 2 are interconnected, so they
are taken up for consiclerat ion at a stretch.
16. The submission of the learned Advocate for the plaintiff Is that defendants representing to be the owners of the properties have approached the plalntIff agreed to sell the property, thereafter, they have received a sum of Rs.60 lakhs under the agreement of sale. The submission of the learned Advocate for the clefrndants is that this aspect need not be gone into as the suit is not maintainable. It is true that the maintainability of the suit has to be considered by any Court while deciding a case. But the maintainability of the suit cannot be decided without going Into the facts of the ease so, the Court is of the considered opinion 1.11 '11 1• 1 ), .)J. )1 31 1 4 )LI. ' )• '• • a • I •' jil. E )i ji • •1t:jFSi• ''I P ' 'I %l t• :;
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both situated at LntegoI1ahaL1i "dlage. Kasuba habit I3arqialoie XoriIi TaluiC. The notice Issut tI by th'- dc lendarns bein& proved. thr it In lee cx upr amc or tic c a hit in, cit (1 aIraiff 1 thc dt aiits hai entn en Into agreement of salt of 1h plaint %(hedulc propt-rtif% i'i f;noar of tin planiftI is prnied. list Iii ca' of t dtlcndan by rsuI nods c. ti w e he yr r n ti- lint inc ftc-I. .ub'attar. h tot it lit" f tfl. an.flunt -'1 t bO '(.OC") R ' ' TlL' 'jet(ts J(st .. h" niiflttr 'JaI'yi ' 'x cI !' tlv- 4 nvit ,.,l : s ' Lhc I aiu'c ! ri.I Jiin"-t 15 p has not framed an' issue on the aspect of forfeiture of the amount paid under the agreement of sale. Further. no finding is given by the learned trial Judge on the said subject. It is not the case of the learned Advocate for the defendants that the appeal being a regular fIrst appeal, the Court should give a finding on the aspect of forfeiture of the advance. So, the Court need not give a fInding on the subject of forfeiture of the advance. The suit filed by the plaintiff Is for the relief of permanent irkjunction, no relief In regard to the forfeiture of the advance being sought Ibr and a finding being not given on tile subject. the material discussed above would prove the ease of the plaintiff, regarding advancing Rs.60,00,000/- to the defendants and the defendants having received the part of the sale consideration of Rs. (30.00.000/-. have exeew ed an agreement of sale as per Ex.P.2. The learned Advocate for the defendants places reliance on Section 41 of the I t oc 41 Injacin shea ft n inj et on sna be granted
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submission that the principles under Section 41(h) of the Specific Relief Act when there is a equally efficacious relief, the plaintiff should not be permitted to restrict his claim for permanent injunction cannot be accepted.
17. In other words, the material placed by the plaintiff nevertheless Ex.P.2 supports the case of the plaintiff as there being an agreement of sale as the one pleaded by P.W. 1. While so, tracing of the title in regard to the property is concerned, title of one of the items is based on the grant made by the Land Tribunal. In regard to the other, title is traced by the order of the Civil Court. These particulars are reflected In the agreement of sale - Ex.P.2 itself. So, there was no denial by the defendants and that the defendants have not executed the agreement of sale need not be gone into, as the suit is not for specific performance. 18 Be that as it may be. The discussion by the Court would probal)lize that the cleiènclants are signatories to Ex.P.2.
18. Further in the facts of the ease, the plaintill has relied on additional evidence under Order XU Rule 27 of the Code of Civil Procedure along with an application for additional evidence. The plaintiff has produced an agreement of sale dated 31.5.2007 said to be executed by the detèndants In favour of Dr.RB.Choudary, wherein defendants have agreed to sell the property to Dr. R.B.Choudary for a consideration. The learned Advocate for the defendant s has flied objections. In the objections, it is not the case of the defendants that they have not executed agreement of sale in favour of Dr.RB.Choudary. So. the acts of the defendants durIng the sttbsistt'ncc' of Ex.l'.2 -- agreement of sale. the very property in favour of Dr.R.B.Choudary is contrary to the obligations expressed by the defendants iii Ex.P.2. 19 0 rhe material discussion would probablize and trove the contention of the plaintiff that the defendants are intending to alienate the plaint schedule properties in favour of a third party.
19. The rulings referred by the learned Advocate for the defendants would probablize that under Section 41 of the Specific Relief Act if there is any effective and efficacious relief available, a simple suit for permanent injunction is not maintainable. Applying the very same principle. Ex.D.2 relied by the defendants have to be considered by the Court. Ex.D.2 reacts as under:
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S Perpetu injunctior hen grant d 1j Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his our, wh her e p -sly o by i cati 1 lit u' I )i $8 1dm I I 'IT l'I Iu] I i I iii! i ii I- -:; x J\ ('4 4 jI' ;iij'i'1 Imkj'u I') pi)h'iI. 'lLi1um1o! )Jij I ml j i( 3iIL ' ' im I :'I11' 'I I •II I i 1 II 14 '4 1 1 '1 'TI ) 'I i, 1 22 S Is to give an end by performance. breach or cancellation. No such defence being putforth or defence being l)rOvecI. material 1)laced before the Court would probablize subsistence of the contract, incapable of performance by the defendants on account of the 13l)A failing to give an NOC in regard to the plaint schedule properties in favour of the plaintiff. So the contention of the learned Advocate for the defendants that Section 41(h) of the Specilic Relief Act bars the suit of the plaintiff and the plaintiff cannot maintain a suit for permanent injunction alone is without any merit and is rejected.
21. A careful consideration of the material placed by the defendants in Ex.D2 would probablize the BDA in principle seem to have agreed to release the property in question in favour of the owners but the BDA has not yet released by giving the NOC. So. the facts placed 23 before this Court are distinguishable from the ratio relied by the learned Advocate for the defendants. The facts placed before flit' Court would probablize that it is not a stage at which the plaintiff can seek the defendants to get the NOC from the BDA. The next submission of the learned Advocate for the defendat its is that if t he property cannot be alienated to the plaintiff. it cannot be alienated to others also. The submission is quite logical and interesting. But the life of law is not logic but experience. In the facts of the case, the plaintiff has produced in the form of additional evidence the document styled as I.A.I/2012, Application under Order XU Rule 27 which refers to the defendants trying to alienate the very same property in favour of one Dr.R.B.Choudary and places reliance on the xerox copy of the agreement of sale dated 3 1.5.2007. This aspect of additional evidence is brought to tlit' notice of the learned Advocate for the 24 4 defendants. The learned Advocate for the defendants has filed objections. There is no specific assertion in the counter filed to the application about the case pleaded by the plaintiff, in regard to the intention of the defendants to alienate the property in favour of Dr. Choudary. So, the facts placed before this Court in the form of additional evidence supports the case of the plaintiff in regard to the apprehension of the plaintiff that the defendants are intending to alienate the property to others. So the logical principle urged by the learned Advocate for the defendants is not attracted to the facts of the case. So also the rulings relied by the learned Advocate for the defendants are not applicable to the facts of the case.
22. The findings of the Court would probablize and prove the contention of the plaintiff that the defendants by their acts after entering into an agreement of sale are 25 trying to alienate the property in fhvour of the third parties. As found Ironi I he probability of the ease oi (1w plaint 1ff, the Court intends to take LII) for consideration the legal objection raised by the learned Advocate for the defendants about the maintainability of the stilt.
23. It is true a reading of Section 41 of the Specific Relief Act would su)port the submission of the learned Advocate for the plaintiff that whenever the plaintiff is in possession to seek for elfrctive relief, a simple suit for permanent injunction is not maintainable. Similar is the principle enunciated in Explanation to Section 34 of the Specitie Relief Act. The point is answered by this Court supra when the Court has held that the acts of the defendants in alienating the property would support the case ol the 1)laintifl so as on this day the clearance from the BDA is one of the requirements to complete the sale transaction as the one reflected in t'\ It_. St )1 'I,;€.TI,', ;n C ' H' •'4t' e .4 •. i1 Tii 1 ' .t!: • In S; .iiit 1 [a k I . i ' .1'-- :--. .'' ' ii 'x'; •, fl i'nccl LI fl 'iNtl I iii 1 It Ii he t ,'lk U Pt 'Il)qctli' t 4 'iii' St 11011 1 1. hi ie Is ..iii t4iiit inn • it Vt ci lii 1 ',I:r 1 ' ' ! il1• I: •.• is('fl Ui .lac pair. VI'. ;t1'1 pt ''II' L oljI1t ti 'a , urn 't'' 'h 'ii
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24. The other submissions which require
consideration of the Court is whether the Court can grant an order not to alienate the property for eve?? It is tnie there is sufficient force In the submission of the learned Advocate for the defendants but in the facts and circumstances of the ease the defendants themselves having received some consideration admit to execute the sale deed and if they are permitted to sell the property in favour of third party. the principle of unjust enrichment is probablized in the facts and circumstances of the case. If the acts of the defendants are iii accordance with law. the order of the Court will not come in the way of defendants dealing with the property. The submission of the learned Advocate for the defendants that an order directing not to alienate the iropeity should not be granted is also loosing its force. The material discussion and finding would probablize that the plaintiff has made out a 'nrpc : e1' 1 rii1 ._ IlI' I :' '•w 'i' 1 an nl,Iatcat:c.i, 1 ;h.
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