Karnataka High Court
Smt Venkamma W/O Late Raghavendrachar ... vs Ramanlal S/O Chaganlal Kothari on 12 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 12TH DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL NO.836/2006
BETWEEN:
1. Venkamma
W/o Late Raghavendrachar dead
(suit was abated)
2. Laxmidevi
W/o Late Venkobachar
Aged: 52 years,
Occupation: Household
R/o Beroon Quila Near
Laxminarayana Temple
Raichur - 584 102.
Since dead, represented by her Legal
Representatives:
1. Manoj S/o Venkobachar
2. Kishore S/o Venkobachar
3. Raghavendra S/o Venkobachar
4. Mukunda S/o P. Venkobachar
All are majors
R/o Beroon Killa
Near Laxminarayana Temple,
2
Raichur-584 102.
4. Shyamachar
S/o Late Raghavendrachar
Aged: 56 years, Occupation: Accounts
Superintendent,
UKP Almatti
Bijapur (District)
Now R/o Hospet-586 101.
... APPELLANTS
(Shri P.S. Malipatil and
Shri Gururaj Rao Kakkeri, Advocate for appellant-3
Shri N. Chandrashekarayya,
Shri Mallinath Hiremath,
Shri Prasanna Sharma and
Shri Govaradhan Reddy, Advocate for appellant
Shri Praveen Kumar Raikote (Noc), Advocate)
AND:
Ramanlal S/o Chaganlal Kothari
Aged: 36 years,
Occupation: Agriculture and Business
R/o Bhagyalakshmi
Saree Centre Cloth Bazaar
M.G. Road,
Raichur - 484 101.
....RESPONDENT
This Regular First Appeal is filed under Section 96 of
CPC against the Judgement and Award dated 28.2.2006 passed
in O.S. No. 117/1995 on the file of the Additional Civil Judge
(Senior Division) at Raichur, decreeing the suit for specific
performance.
3
This appeal coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellants and the learned counsel for the respondent.
2. The appellants were the defendants before the Trial Court. The parties are referred to by their rank before the Trial Court, for the sake of convenience.
3. The plaintiff had filed the suit claiming that he was the owner in possession and enjoyment of the suit property, having been put in possession under an agreement of sale dated 12.11.1990 and that the defendants were the joint owners who had executed the agreement for a sale consideration of Rs.1,42,800/- and had received an advance amount of Rs.19,000/- under the agreement of sale. The balance was to be paid at the time of registration of the sale and the defendants had agreed to produce the original documents of title at the time of execution of the registration of the sale deed. It is alleged 4 that the plaintiff thereafter made several attempts to complete the transaction, but the defendants delayed the same on one or the other pretext and postponed the transaction and when the defendants were trying to negotiate with a third party to sell the property and tried to dispossess the plaintiff, the plaintiff was constrained to file the suit. The suit against Defendant No.1 was dismissed, as the plaintiff had failed to take out process and Defendants 2 and 3 having entered appearance, had contested the suit claiming that Defendant No.1 was the absolute owner of the property and she was in possession of the same. The land was service inam land and occupancy rights in respect of the land had been granted by the Land Tribunal, Raichur District under the Karnataka Certain Inams Abolition Act, 1977 and the Karnataka Land Reforms Act, 1961 and that the Defendants 2 and 3 did not have any right over the land during the lifetime of Defendant No.1 and that the Defendant No.2 was the widow of late Venkobachar who was the predeceased son of Defendant No.1. Therefore, the Defendant No.1 could not 5 claim exclusive title to the property and the plaintiff knowing the same, was claiming under the agreement of sale, which was a nullity. Further, it was pointed out that the agreement of sale contains a specific clause that in the event of failure to the agreement or breach committed by the defendant, the plaintiff was only entitled to recover the earnest money with interest and therefore, the suit for specific performance was misconceived and no relief could be granted in terms of Section 9 of the Specific Relief Act, 1963. Further the Defendant No.1 had issued a legal notice on 3.12.1991 terminating the suit agreement and therefore, the suit ought to have been filed if at all within three years from the date of cause of action arising and since the suit was initially filed only for the relief of permanent injunction and was sought to be amended by recourse to an application I.A.4 under Order VI Rule 17 of the Code of Civil Procedure, 1908 much beyond the period of limitation and the same having been contested, though the Trial Court had allowed the application, the same was carried by way 6 of a Revision Petition before this Court and the question of limitation having been left open, the defendants claimed that the suit was barred by limitation and could not be entertained. It was also claimed that Venkobachar, the predeceased son of Defendant No.1 had left behind his widow and four sons namely Defendant No.2 and her sons and in terms of Section 15 of the Hindu Succession Act, 1956, Defendant No.2 would not succeed to the suit property even after the death of Defendant No.1 and the suit is bad for non-joinder, in the grandchildren of Defendant No.1 not having been made parties. It is on the basis of these and further averments that the court below had framed the following issues:
"1) Whether the suit of the plaintiff is not maintainable in view of Sections 9 & 17 of the Specific Relief Act and as contended by defendant No.1 in her written statement at para No.1(b)(c) and (g)?7
2) Whether suit of the plaintiff is barred by limitation as contended in para No.1(d)(ii) & (f) in the written statement of D-2?
3) Whether suit is bad for non-joinder of necessary parties as contended in para No.1(h)(u) of the written statement of D-2?
4) Whether plaintiff proves that defendants have right or title or interest over the suit property to enter into sale agreement with him?
5) Whether plaintiff proves that sale agreement in favour of him in respect of suit property is valid and enforceable under the law?
6) Whether plaintiff proves that, he has purchased the suit property under agreement of sale dated 12.11.1990 from the defendants?
7) Whether plaintiff proves his possession over the suit property from the date of agreement of sale as alleged?
8) Whether plaintiff proves his readiness and willingness to perform his part of contract?
9) Whether plaintiff is entitled to the reliefs sought for?
10) What order and decree?"8
The Trial Court answered Issues 1 to 3 in the negative and the other issues in the affirmative and had decreed the suit in favour of the plaintiff. It is that which is under challenge in the present appeal.
4. The learned counsel for the appellants would draw attention to the legal notice issued by Defendant No.1 terminating the agreement and the same is dated 3.12.1991 at Exhibit P3, wherein the plaintiff was called upon to pay the balance price and have the sale deed registered within 10 days from the date of receipt of the notice, for otherwise, the agreement would stand cancelled and the advance amount received would stand forfeited and therefore, the learned counsel would contend that the cause of action would arise immediately upon the declaration by the Defendant No.1 to the effect that the sale deed would stand cancelled and since the cause of action has arisen immediately thereafter, the suit ought to have been filed in terms of Article 54 of the Limitation Act, 9 1963, within the period prescribed therein, which expired in December 1994 and the amendment seeking the relief of specific performance having been incorporated in the year 1995, it would not date back to the date of the plaint, as this Court in the Revision Petition, has categorically observed that the mere amendment of the plaint by virtue of incorporating the relief of specific performance in the year 1995, it would not date back to the date of suit and that the question of limitation was kept open and the Trial Court having overlooked this significant aspect which was fatal to the very suit, the appeal would have to succeed on that ground alone.
5. While the other grounds raised in the appeal are also sought to be canvassed, the said ground of limitation was the primary contention.
6. On the other hand, the learned counsel for the respondent would seek to contend that the notice dated 3.12.1991 at Exhibit P3 was not an unconditional termination of the agreement. It merely places a condition that if the plaintiff 10 did not choose to pay the balance amount and have the sale deed executed within 10 days from the date of receipt of notice, the agreement would stand terminated. Since the said legal notice was replied too, soon thereafter on 6.12.1991 as at Exhibit P4 calling upon the Defendant No.1 to furnish the permission required from the competent authority to alienate the property as it was admitted inam land, the Defendant No.1 had not chosen to comply with the demand and therefore, there was default on the part of the defendant in doing so and that the plaintiff was ever ready and willing to have the transaction completed and it could not be said that the termination of agreement came into force merely by virtue of the Defendant No.1 declaring that the agreement would stand terminated within 10 days from the date of notice. It is this primary contention and the counter argument which would require to be addressed in the first instance, without entering upon the other grounds for, if the appeal could be disposed of on that ground alone, it would not be necessary to address other grounds. 11
7. On the face of it, it is apparent that the Defendant No.1 in Exhibit P3 has clearly indicated that there is unwillingness to complete the transaction and even if it was misleading, the claim that the plaintiff was not ready and willing to complete the transaction and that there was default on the part of the plaintiff on the apparent negation of the transaction on the footing that the plaintiff was not ready and willing and in spite a reply by the plaintiff as per Exhibit P4 when there was failure on the part of the plaintiff to comply, there was clearly a breach of agreement and cause of action arose. Therefore, proceeding on the footing that in the reply notice by the plaintiff calling upon the defendant to complete the transaction not having complied with, the suit ought to have been filed immediately thereafter.
Originally, the suit was filed on 25.04.1992 for the relief of bare injunction and the relief of specific performance was incorporated by way of amendment on 5.7.1995, which is 12 clearly beyond the period of limitation, as it is evident from the judgment.
8. The learned counsel for the appellants has placed reliance on a judgment which would clearly cover the case on all fours in the case of one Van Vibagh Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) vs. Ramesh Chander and others 2011 SCCR 32 :: 2010 (14) SCC 596 wherein the facts are, the appellant was a Co-operative Society with the objects of providing residential plots to employees of the Forest Department of the Madhya Pradesh Government. In the year 1974, three farmers entered into an oral agreement with the appellant to sell their respective lands and they had jointly received a sum of Rs.2,000/- as earnest money in terms of the agreement and they are said to have delivered possession of the land to the appellant. The agreement to sell was executed and signed by all the farmers two years later. The dispute concerns only one of the farmers. It transpires that the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as 13 'the Ceiling Act', for brevity) was enacted by the Central Government and enforced by the Government of Madhya Pradesh in the year 1976. The first respondent, one of the farmers, had filed details of the vacant land possessed by him before the Competent Authority under the Ceiling Act, in the year 1979, and also filed an exemption application under the Ceiling Act in which he specified that a particular extent of land was sold to the appellant. He had also submitted an affidavit that he had sold his agricultural land to the appellant for a consideration and that possession of the same had been handed over and the full payment of the sale consideration was also received by the first respondent in the year 1984. In the year 1985, the Indore Development Authority declared a scheme which included the disputed land. Accordingly, the State Government had issued a notification under Section 4(1) of the Land Acquisition Act, 1894 with respect to the said land. In June 1985, the first respondent filed an application to the District Collector, Indore, stating that he had sold the disputed 14 land to the appellant and possession of the same had been handed over to the appellant and that he did not have any right regarding the acquisition of the land or to get compensation. All proceedings regarding acquisition were to be referred to the appellant and he prayed that the land be exempted from acquisition. Thereafter, there was a final declaration under Section 6 of the Land Acquisition Act published in the year 1986. The first respondent farmer had filed another affidavit in December 1986 stating that the appellant was in possession of the land in question. In January 1987, the appellant filed a writ petition along with the first respondent - farmer, before the High Court of Madhya Pradesh seeking quashing of the acquisition of the disputed land. There was an ad-interim injunction staying further proceedings before the Land Acquisition Officer. The first respondent then issued a public notice in a local daily that he was the owner in possession of the disputed land and any action taken by the appellant over such land would not affect the rights of ownership and possession of 15 the first respondent over the land. He had also stated that the agreement of sale and Power of Attorney stood cancelled. Immediately thereafter, he filed a suit in February 1991 for declaration of ownership of the appellant in the suit land and for permanent injunction before the Civil Court. The prayer for temporary injunction made in the suit was dismissed by the Trial Court on the footing that no prima facie case was made out and that the suit was not filed for the relief of specific performance.
In January 1994, when the Writ petition before the High Court came up for hearing, the Indore Development Authority declared that it had withdrawn its scheme.
Therefore, the High Court allowed and quashed the notification under the Land Acquisition Act. The land was reverted to the original owner as the notification under challenge was quashed. In January 2000, the Civil Court filed a complaint before the Judicial Magistrate under Section 340 of the Code of Criminal Procedure, 1973 on the ground that the first respondent 16 committed offences under Sections 199 and 193 of the Indian Penal Code and requested the Magistrate to prosecute him for such offences. That complaint was pending. The Parliament then enacted the Urban Land (Ceiling and Regulations) Repeal Act, 1999 and the Madhya Pradesh Government adopted it by a resolution of February 2000. Accordingly, the Ceiling Act stood repealed. Thereafter, the appellant by a legal notice in June 2000, called upon the first respondent to execute and register the sale deed in respect of the disputed land, failing which the appellant threatened to file a suit for specific performance. The first respondent refused by a legal notice issued in June 2000. In the meanwhile, the appeal filed by the appellant against the order passed by the Trial Court dismissing the application for temporary injunction was also dismissed and the findings reached by the Trial Court were affirmed by the First Appellate Court. It was not carried further and then the appellant moved an application for amendment of the pleadings in the pending Civil suit for the relief of specific performance 17 of contract. The same was allowed by an order dated 10.03.2003 and the amendment was incorporated. The first respondent filed an application for a review of the order dated 10.03.2003, which was dismissed. The plaint was returned to the appellant for filing the same in the Court of competent jurisdiction, as the suit exceeded the pecuniary jurisdiction of the Civil Court. In June 2003, the appellant presented the plaint in the competent court along with an application under Section 14 of the Limitation Act, 1963, praying for exclusion of the time spent in prosecuting the suit before the other court. The plaint was transferred and was registered. Before the Trial Court, the appellant contended that in February 1991, while instituting the suit, he had not sought the relief of specific performance in view of the fact that no exemption under Section 20 of the Ceiling Act was obtained in respect of the suit land. However, the said contention was rejected and by an order dated August 2004, the suit was dismissed. The application under Section 14 was also dismissed. Aggrieved by 18 which, the appellant approached the High court. The High Court dismissed the appeal. Assailing the judgment of the High Court, the appellant was before the Supreme Court contending that the agreement of sale dated 31.03.1976 was acted upon and that the first respondent participated to represent the said lands and that the appellant should not have allowed to approbate and reprobate in taking a completely different stand in the public notice which was published by him. Reliance was placed on the judgment of C. Beepathumma & Ors. vs. V.S. Kadambolithaya & Ors 1964 (5) SCR 836. Relying on the Doctrine of Election by referring to Maitland's Lectures on Equity, as also on leading cases on Equity by White and Tudor, wherein the Apex Court while explaining the Doctrine of Election that prohibits a person from taking an inconsistent stand in connection with certain documents, it was observed that neither before the Trial Court nor the High Court did the appellant advance that argument. Apart from that, in the notice dated 3.2.1991, the first respondent had clearly stated that the 19 agreement of sale stood cancelled and the first respondent had asserted his title over the plot of land in question. Therefore, the crucial question was whether the appellant had a cause of action to file a suit for specific performance and it was declared by the Supreme Court that refusal by the first respondent to acknowledge the right of the appellant definitely furnishes the appellant with a cause of action to file a suit for specific performance. If the appellant had filed such a suit, it could in the said suit, have questioned the action the action of the first respondent as blowing hot and cold. But it was not within the period of limitation prescribed. Therefore, it was observed that the principles of law of election, discussed in C. Beepathumma & Ors. vs. V.S. Kadambolithaya & Ors in a totally different factual context, and would be of no assistance to the appellant.
It was further opined that the appellant had a cause of action to sue for specific performance in the year 1991 but had omitted to do so and that not having been done, it should not be 20 allowed to sue on that cause of action later. Hence, the suit was also hit by the provisions of Order II Rule 2 CPC.
Though there was no second suit filed by the appellant, the broad principles of Order II Rule 2 which are based on public policy were attracted in the facts of the case. Even though the amendment to include the relief of specific performance had been allowed 12 years after the filing of the suit, such an amendment in the facts of the case would not date back to filing the original plaint, in view of the clear bar under Article 54 of the Limitation Act. And the Apex Court has also referred to the case of Vishwambhar & others. vs. Laxminarayan and another 2001 (6) SCC 163, wherein it is held that if as a result of allowing the amendment, the basis of the suit is changed, such amendment even if allowed, cannot relate back to the date of filing the suit to cure the defect of limitation. Thus, the court was of the view that the plea of specific performance which is a discretionary relief, cannot be 21 granted to the appellant and accordingly has dismissed the appeal.
The above reasoning in the said judgement, would apply on all fours to the present case on hand as evidently, incorporation of the relief of specific performance was beyond the period of limitation and secondly, the court below was not justified in decreeing the suit for specific performance having regard to the suit for specific performance being clearly barred as on the date the relief was incorporated by virtue of the amendment.
Accordingly, the appeal is allowed. The suit stands dismissed.
Sd/-
JUDGE KS