Karnataka High Court
Sri Shivaji Rao M Poal vs Smt Narayanamma on 5 September, 2012
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
M.F.A.No.7537/2012 (CPC)
BETWEEN:
Sri Shivaji Rao M.Poal
S/o late M.K.Poal
Aged about 40 Years
R/at No.198, 2nd Ward
Main Bazaar Street
Sandur - 583 119. ... Appellant
(By Sri R.S.Ravi, Advocate for M/s.Lexaxis, Advocates)
AND:
1. Smt.Narayanamma
W/o late Ramaraju
Aged about 80 Years.
2. Sri K.R.Rajakumar
S/o late Ramaraju
Aged about 57 Years.
Respondents 1 and 2 are
R/at No.29/30, 18th Cross
8th Main, B.T.M.Layout II Stage
N.S.Palya, Bangalore - 560 076.
3. Smt.S.B.Papachiamma
D/o late S.M.Bheemanna
Aged about 39 Years.
4. Smt.S.B.Prabha
D/o late S.M.Bheemanna
Aged about 36 Years.
2
5. Smt.S.B.Lalitha
D/o late S.M.Bheemanna
Aged about 35 Years.
6. Smt.Vijaya
D/o late S.M.Bheemanna
Aged about 28 Years.
7. Sri S.B.Manjunath
S/o late S.M.Bheemanna
Aged about 25 Years.
8. Smt.S.B.Nirmala
D/o late S.M.Bheemanna
Aged about 23 Years.
9. Sri S.B.Mahesha
S/o late S.M.Bheemanna
Aged about 20 Years.
10. Smt.Rathnamma
W/o late S.M.Bheemanna
Aged about 51 Years.
11. Sri S.B.Srinivas
S/o late S.M.Bheemanna
Aged about 34 Years.
12. Sri S.B.Chandrashekhar
S/o late S.M.Bheemanna
Aged about 29 Years.
13. Smt.S.B.Vanaja
D/o late S.M.Bheemanna
Aged about 27 Years.
14. Smt.S.B.Bhagya
D/o late S.M.Bheemanna
Aged about 25 Years.
15. Sri S.B.Murali
S/o late S.M.Bheemanna
Aged about 24 Years.
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16. Sri S.B.Murugendra
S/o late S.M.Bheemanna
Aged about 22 Years.
17. Smt.S.B.Manjula
D/o late S.M.Bheemanna
Aged about 20 Years.
18. Smt.Chinnathayamma
W/o late Venkatasubbaiah
Aged about 47 Years.
19. Sri V.Subramani
S/o late Venkatasubbaiah
Aged about 27 Years.
20. Sri V.Nagaraj
S/o late Venkatasubbaiah
Aged about 25 Years.
21. Smt.V.Jyothi
D/o late Venkatasubbaiah
Aged about 22 Years.
22. Sri V.Gopi
S/o late Venkatasubbaiah
Aged about 21 Years.
23. Miss Padma
D/o late Venkatasubbaiah
Aged about 18 Years.
Sri S.M.Krishnappa
Since deceased by his LRS.
24. Smt.Aswathamma
W/o late S.M.Krishnappa
Aged about 48 Years.
25. Sri K.Venkatesh
S/o late S.M.Krishnappa
Aged about 28 Years.
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26. Sri K.Manjunath
S/o late S.M.Krishnappa
Aged about 26 Years.
27. Ms.K.Jyothi
D/o late S.M.Krishnappa
Aged about 24 Years.
28. Ms.K.Prema
D/o late S.M.Krishnappa
Aged about 23 Years.
29. Ms.K.Sheela
D/o late S.M.Krishnappa
Aged about 21 Years.
30. Sri K.Murthy
S/o late S.M.Krishnappa
Aged about 19 Years.
31. Smt.Sandamma
D/o late Munivenkatappa
Aged about 70 Years.
32. Smt.Papamma
D/o late Munivenkatappa
Aged about 55 Years.
Respondents 3 to 32 are
R/o Subbanna Gardens
Taravekere Village, Begur Hobli
Bangalore South Taluk - 560 005. ... Respondents
(By Sri Jayakumar S.Patil, Senior Advocate for M/s.Rama Mohan
Associates, Advocates for R1 & R2; Notice to R3 to R32 is
dispensed with v.c.o. dated 14.08.2012)
This appeal is filed under Order 43 Rule 1(r) CPC, to set
aside the order dated 02.07.2012, passed on IA.No.3 in
O.S.No.1928/2011, on the file of XI Additional City Civil Judge,
Bangalore City, dismissing IA.No.3 and etc.
This appeal having been heard and reserved for judgment
on 25.08.2012, coming on for pronouncement this day, the court
delivered the following:-
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JUDGMENT
The learned trial Judge has granted an order of temporary injunction in the following terms:-
"The defendant No.31, his agents, servants or anybody on his behalf are hereby restrained by an order of temporary injunction from dispossessing the plaintiffs from suit property without taking recourse to due process of law pending disposal of the suit.
Further defendant No.31 is restrained by an order of temporary injunction from alienating the suit schedule property by creating interest in favour of 3rd party pending disposal of the suit."
Therefore, defendant No.31 is before this court.
2. I have heard Sri R.S.Ravi, learned counsel for appellant-defendant No.31 and Sri Jayakumar S.Patil, learned senior counsel for respondents 1 & 2-plaintiffs 1 & 2.
3. The averments of plaint in brief are as follows:-
One late Munivenkatappa was the owner of land bearing survey No.50 of Tavarekere Village. He had executed an agreement of sale dated 18.03.1976 in respect of 20 6 guntas of land in survey No.50 of Tavarekere Village in favour of plaintiff No.1. The agreed sale consideration was a sum of Rs.55,000/-. Plaintiff no.1 had paid advance sale consideration of Rs.20,000/- to late Munivenkatappa. Plaintiff No.1 is the mother of plaintiff No.2. After execution of agreement of sale dated 18.03.1976, plaintiffs took possession of suit schedule property. The II-plaintiff started an industry under the name and style of "Veeranjaneya Auto Engineering Works" on suit schedule property. During the lifetime of late Munivenkatappa, plaintiffs had approached him to execute a registered sale deed in their favour and offered balance sale consideration of Rs.35,000/-, however late Munivenkatappa was postponing execution of registered sale deed for one reason or the other.
During the year 1977, Bangalore Development Authority (for short, 'BDA') issued a Notification to acquire the land to form BTM Layout. Late Munivenkatappa and his sons along with other land owners filed writ petitions. In the year 2005, after demise of Munivenkatappa, his daughter-in- law made a representation to the Government of Karnataka 7 for de-notification of land. The Government of Karnataka denotified the land in survey No.50 of Tavarekere Village from acquisition proceedings, however said Notification was again withdrawn at the instance of BDA. The order of withdrawal of de-notification was challenged by Smt.Muniyamma in W.P.No.1304/2005. This court allowed the writ petition on 30.03.2007, against which BDA filed W.A.No.936/2007 and the same was dismissed on 11.12.2008. Therefore, plaintiffs I & II approached the legal heirs of late Munivenkatappa for execution of a registered sale deed in respect of suit property, pursuant to agreement of sale dated 18.03.1976. There were several litigations between parties. In the meanwhile, BDA had challenged dismissal of W.A.No.936/2007 before the Supreme Court in SLP Nos.20190-91/2009, which is pending.
4. The suit is filed for specific performance of agreement of sale dated 18.03.1976. The reliefs sought for in the suit read thus:-
(a) Directing the defendants 1 to 31 to execute the absolute sale deed with respect to the suit schedule 8 property in favour of the plaintiffs by receiving the balance consideration amount of Rs.35,000/-
(Thirty five thousands) only and if the defendants fail to execute the same, this Hon'ble court may be pleased to direct the concerned authority to execute the registered sale deed in respect of suit schedule property in favour of plaintiffs in accordance with law.
(b) Granting permanent injunction restraining the defendant No.31 or his agents or henchmen or anybody claiming through or under him from the plaintiffs' possession and enjoyment of the suit schedule property."
5. Defendant No.31 filed written statement, denying plaint averments relating to execution of agreement of sale dated 18.03.1976. Defendant No.31 while admitting acquisition proceedings has stated that suit schedule property was notified by BDA for acquisition for formation of BTM Layout vide Preliminary Notification No.BDA.SALAO.C4.PR(S) 131/1977-78 dated 19.09.1977 and final notification was passed vide No.HUD-3-MNJ-1978 dated 07.02.1978. Subsequently, the legal heirs of late Munivenkatappa had approached the authorities for de- 9 notification and the Government of Karnataka was pleased to issue Notification No.UDD.85.MNX/2001 dated 12.04.2001, dropping acquisition proceedings and denotified the acquired land, including suit schedule property. Subsequently, the order of de-notification was withdrawn, without assigning any reasons. The same was challenged in W.P.No.37577/2003 and writ petition was allowed. The BDA filed W.A.No.8084/2003 and the same was dismissed on 06.01.2005. The BDA filed an appeal before the Supreme Court in SLP No.20190/2009 and the same was dismissed on 02.03.2011. Thus, descendants of late Munivenkatappa (defendants 1 to 30) became absolute owners of suit schedule property.
6. Defendant No.31 has made a reference to O.S.No.17657/2005 filed by II-plaintiff, wherein II plaintiff claimed title to suit schedule property by adverse possession and O.S.No.25881/2009 filed by II-plaintiff for permanent injunction against defendants. The sum and substance of written statement of defendant No.31 is; that agreement of sale dated 18.03.1976 is a fabricated document; the suit is 10 frivolous; suit is barred by time and there is no cause of action for the suit; suit is filed to harasss defendants 1 to 31.
7. After the institution of instant suit, the learned trial Judge had granted an ex parte order of temporary injunction. Defendant No.31 had made an application (IA No.3) under Order XXXIX Rule 4 CPC. The learned trial Judge by the impugned order, granted an order of temporary injunction as aforestated and dismissed the application (IA No.3) filed by defendant No.31 for vacating the ex parte order of temporary injunction.
8. When the matter was taken up for hearing, learned counsel for respondents 1 & 2 (plaintiffs 1 & 2) has filed following documents:-
(1) Copy of agreement of sale dated 18.03.1976 (2) Typed copy of agreement of sale dated 18.03.1976 (3) The report of Revenue Inspector (4) Paper publication relating to proceedings in Arbitration Application in A.A.No.112/2012 11
9. After hearing learned counsel for parties and having gone through pleadings, I am of the considered opinion that the impugned order is frivolous and vexatious. The learned trial Judge has failed to notice the fundamental flaws in the frame of the suit. The learned trial Judge has failed to notice that agreement of sale dated 18.03.1976 (suit document) is shrouded with suspicion. The learned trial Judge has failed to comprehend as to how suit for specific performance of agreement of sale dated 18.03.1976 could be filed on 11.03.2011 viz after a lapse of 35 years.
10. On perusal of copy of suit document (agreement of sale dated 18.03.1976), I find that this document does not bear thumb impressions of alleged executant. The thumb impressions of alleged executant are completely smudged, prima facie they cannot be termed as thumb impressions. The first page of suit document contains two thumb impressions, which are unidentified thumb impressions. The thumb impressions alleged to have been affixed by late Munivenkatappa have not been identified. There is an endorsement to the effect that thumb impression mark has 12 been identified as left thumb impression of late Munivekatappa by scribe of the document. Similar endorsement is made on the thumb impression found on second page of the document. However, name of the scribe of document is not disclosed. In the copy of agreement of sale dated 18.03.1976, there is no identity of executant as also identity of scribe of the document. The document is alleged to have been attested by one G.C.Subbaiah Shetty and one Marigundappa. The signature of second witness namely Marigundappa is blocked by affixing thumb impression (mark which appears like a thumb impression mark).
The endorsement of stamp vendor and the date on which stamp paper was issued are also smudged. Neither the name of stamp vendor nor the date of issuance of stamp paper can be ascertained.
Thus, bare perusal of copy of suit agreement (agreement of sale dated 18.03.1976) would prima facie disclose that party relying on this agreement (plaintiff No.1) had taken precautions to conceal the material aspects of the document such as identity of thumb impression marks, 13 which are as many as four in numbers. The identity of executant of agreement; identity of scribe of document, identity of witnesses, the name of stamp vendor, who had sold the stamp paper and date of purchase of stamp paper.
On bare perusal of this document, it is hardly possible to conceive that late Munivenkatappa had executed an agreement of sale in respect of suit schedule property in favour of I-plaintiff.
11. In the plaint, there is reference to several proceedings, in particular proceedings relating to acquisition of land, de- notification of land, withdrawal of de-notification of land. However, nothing is stated about extension of period of limitation, more particularly, when suit for specific performance of agreement of sale dated 18.03.1976 was filed after a period of nearly 35 years. On the other hand, it is stated in the plaint, cause of action arose on 01.12.2010 and subsequent dates.
12. Under Order VII Rule 6 CPC, where a suit is instituted after expiration of period prescribed by law of limitation, 14 plaint shall show the ground upon which exemption from such law is claimed, provided that the court may permit the plaintiff to claim exemption from the law of limitation, on any ground not set out in the plaint if such ground is not inconsistent with the grounds set out in the plaint.
The learned trial Judge has completely ignored this fact. The learned trial Judge in all fairness, at first instance should have examined the question of limitation when the suit for specific performance of agreement of sale dated 18.03.1976 was filed after a period of 35 years. The impugned order is completely silent on this aspect. Under relief '(a)':-
13. The plaintiffs had sought for execution of a registered sale deed by defendants 1 to 31 in favour of plaintiffs by receiving balance sale consideration of Rs.35,000/- from them. It is not the case of plaintiffs that defendants 1 to 31 were executants of alleged agreement of sale dated 18.03.1976. The plaint averments do not disclose as to how the agreement of sale dated 18.03.1976 alleged to have been 15 executed by late Munivenkatappa could be enforced against defendants 1 to 31. There are no averments in the plaint regarding contractual obligations of defendants 1 to 31 to execute registered sale deed in favour of plaintiffs.
14. The plaintiffs have referred to various proceedings, which in my considered opinion have no relevance on the agreement sought to be enforced.
15. The plaintiffs had filed O.S.No.1928/2011, for permanent injunction against defendants from interfering with peaceful possession and enjoyment of suit schedule property. The plaintiffs had filed O.S.No.17657/2005 against Muniyamma & others for a judgment and decree declaring adverse possession of plaintiffs to suit schedule property (suit schedule property herein). On 09.07.2012, O.S.No.17657/2005 was withdrawn. Plaintiff No.2 had filed W.P.No.25363/1999 against Karnataka Electricity Board (for short, 'KEB') for a direction to KEB in the nature of writ of mandamus to restore electric power supply. 16
In O.S.No.17657/2005 and W.P.No.25363/1999, plaintiff No.2 has not stated that late Munivenkatappa had executed agreement of sale dated 18.03.1976 and II-plaintiff is in possession of suit schedule property in part performance of agreement of sale dated 18.03.1976. The agreement of sale dated 18.03.1976 had suddenly sprung after de-notification of land bearing survey No.50, which is the larger part of suit schedule property.
The learned trial Judge, without noticing these basic infirmities and without looking into suit agreement (agreement of sale dated 18.03.1976) which is a highly suspicious document has granted an order of temporary injunction holding that there are triable issues in the suit. In my considered opinion, the approach of learned trial Judge is totally erroneous. From the impugned order it is clear that learned trial Judge has not bothered to look into suit agreement. The learned trial Judge has not considered as to how suit agreement can be enforced against defendants 1 to 31. The learned trial Judge has not considered the contents of suit agreement (agreement of sale dated 17 18.03.1976), which are highly suspicious. The learned trial Judge has failed to consider whether plaintiffs had any cause of action to institute the suit.
16. In a decision reported in (2011) 8 SCC 249 (in the case of Ramrameshwari Devi and Others Vs. Nirmala Devi and Others), the Supreme Court has held:-
"47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab1 this court was constrained to observe that perjury has become a way of life in our courts.
48. It is a typical example of how a litigation proceeds and continues and in the end there is a profit for the wrongdoer. 18
49. The Learned amicus articulated the common man's general impression about litigation in following words:
"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
50. This court in Swaran Singh1 observed as under: (SCC p.679, para 36) "36. ...Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. 19 To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure."
51. In a recent judgment in Mahila Vinod Kumari v. State of Madhya Pradesh2 this court has shown great concern about the alarming proportion of perjury cases in our country.
52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:
A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the 20 object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.
E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or 21 respondents and only after hearing the parties concerned appropriate orders should be passed.
F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice.
I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare complete schedule 22 and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed."
17. Sri Jayakumar S.Patil, learned senior counsel for plaintiffs 1 & 2 has made certain submissions to justify the impugned order. The learned senior counsel has submitted that due to acquisition of land and de-notification of land, plaintiffs could not file the suit for specific performance.
In my considered opinion, the proceedings relating to denotification, withdrawal of de-notification order and legal proceedings challenging the said orders are totally irrelevant to alleged agreement of sale dated 18.03.1976. The period of limitation for filing the instant suit is governed by Article 54 of the Limitation Act. On the date of alleged agreement of sale, plaintiffs had not contemplated acquisition of land, 23 subsequent de-notification, withdrawal of de-notification and subsequent legal proceedings to wait till the year 2011 to file the instant suit. Therefore, submissions of learned senior counsel for plaintiffs cannot be accepted.
18. On reconsideration of the matter, I hold that approach of the learned trial Judge is erroneous and opposed to settled position of law relating to grant or refusal of order of temporary injunction. The learned trial Judge has failed to notice if suit agreement was in existence, as to how plaintiffs could file a suit asserting adverse possession to suit schedule property. The learned trial Judge without noticing glaring and suspicious circumstances has held it is for the plaintiffs to prove that suit agreement was executed by late Munivenkatappa during trial. The learned trial Judge has held that there are triable issues. The learned trial Judge has not considered question of limitation. The learned trial Judge has not considered the rights of plaintiffs to enforce the suit agreement after a period of 35 years against defendants 1 to 31, who are not parties to agreement of sale dated 18.03.1976 24 In my considered opinion, the learned trial Judge should have scrutinized the averments of plaint and suit document soon after suit was instituted. The learned trial Judge, without considering all these documents and ignoring settled proposition of law, has granted an order of temporary injunction. Therefore, impugned order is perverse, capricious and illegal and the same cannot be sustained.
19. The learned senior counsel for plaintiffs 1 & 2 would submit that in MFA No.1919/2012, some of the defendants herein have conceded that II-plaintiff has been in possession of part of suit schedule property as a tenant. The description of part of suit schedule property, which is in possession of II- plaintiff reads thus:-
"A portion of the vacant land out of Survey No.50 of Thavarekere Village, Begur Hobli, Bangalore South Taluk, measuring East to West:
40 feet (forty feet) and North to South: 110 feet (one hundred and ten feet) and bounded on the:
East by : Munivenkatappa's share
West by : 25 feet Road
North by : Lessor's property
South by : Maheshwari Cinema Theatre."
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The learned senior counsel for plaintiffs submits that defendants cannot dispossess plaintiffs from aforstated property, without taking recourse to law.
The order made on 02.04.2012 by this court in MFA No.1919/2012 would justify the submission made by learned senior counsel for plaintiffs.
20. In the result, I pass the following:-
ORDER The appeal is accepted. The impugned order is set aside. However, it is made clear, this judgment will not enable the defendants to dispossess plaintiffs from a part of suit schedule property viz a portion of the vacant land out of Survey No.50 of Thavarekere Village, Begur Hobli, Bangalore South Taluk, measuring East to West:
40 feet (forty feet) and North to South: 110 feet (one hundred and ten feet) and bounded on East by Munivenkatappa's share, West by 25 feet Road, North 26 by Lessor's property, South by Maheshwari Cinema Theatre, without taking recourse to law.
Sd/-
JUDGE SNN