Bangalore District Court
Sri. Noorulla Sharief vs Smt. Uma Bache Gowda on 27 February, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 27th day of February 2016.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.4176 of 1997
(CCH No.8)
PLAINTIFF: Sri. Noorulla Sharief,
S/O Abdulla Sharief,
major Shop No.1,
Sangam Automobile Shop, No.63,
H.Siddaiah Road, Bangalore
(Sri. Illiyas Hussaih, advocate)
: Vs :
DEFENDANTS: 1. Smt. Uma Bache Gowda,
W/o Bache gowda,
major, No.114, Lal Bagh Road,
Bangalore.
2. Syed Naseeruddin
S/O Nooruddin, major,
3. Syed Fahimuddin, S/O Nooruddin,
major,
Both having their business under
"S.N.Auto Engineering works"
7th Cross, No.2 and 3,
H.Siddaiah Road, Bangalore
2 OS. No.4176/1997
4. Sri. Ayub, S/o Mohd. Haneef, Shop
No.3 and 4, No.634, H.Siddaiah
Road, Bangalore.
5. B.H.Mohammed Mahaboob Pasha,
S/o Late B.M.Mohammed Hanief,
aged about 29 years, R/at No.14,
6th Cross, H.Siddaiah Road,
Bangalore-27
( D.1 - Sri. R.A.K advocate
D.2, 3- Dead
D.4- Given up
D.5- P.S advocate)
Date of the institution of suit: 1.6.1997
Nature of the suit: Specific performance
Date of the commencement of 19.11.2002
recording of the evidence :
Date on which the judgment 27.2.2016
was pronounced :
Total duration: Year/s Month/s Day/s
18 08 26
XI Addl.City Civil Judge,
B'lore city.
3 OS. No.4176/1997
JUDGMENT
This is a suit filed by the plaintiff against defendants No.1 and 5 seeking the relief of specific performance of contract in respect of alleged agreement dated: 1.10.1996 said to have been executed by defendant No.1 in respect of suit schedule property and plaintiff has prayed for grant of decree of specific performance of contract and for permanent injunction relief against first defendant from alienating the suit schedule property in favour of defendant No.2 to 4.
2. The case of the plaintiff as stated in the plaint averments briefly stated as follows:-
The subject matter of the suit is in respect of shop premises as described in the plaint schedule morefully with boundaries and this schedule property description reads as follows:
SCHEDULE Shop premises bearing No.1, Krishnappa Building , No.63, H.Siddaiah Road Bengaluru measuring east-west 29 feet and north-south 11 feet and bounded on the:-
East by: shop No.2 West by: 7th Cross road, North by: Passage South by: H.Siddaiah Road 4 OS. No.4176/1997 First defendant being absolute owner of shop premises bearing No. 1 situated in Sy.No.63, H.Siddaiah road, Bengaluru morefully described herein and this property is called as suit schedule property in this case. In this connection, plaintiff is a tenant in respect of shop premises under first defendant's father and subsequently plaintiff became tenant under first defendant for the last 30 years and he is paying rent of Rs.400/- per month to first defendant. The first defendant, who is the owner of in all 5 shops numbers as shop No.1 to 5 including plaint suit schedule property situated at No.63 , H.Siddaiah road, Bengaluru with an intention to sell the schedule shop to the tenants and had called the defendant individually and entered into an agreement of sale with the tenant themselves, hence, first defendant had executed an agreement of sale dated 1.10.1996 and sold the property in favour of plaintiff for a total consideration amount of Rs. 2,00,000/- and had received advance amount of Rs.10,000/- from the plaintiff and first defendant had agreed to execute registered sale deed in favour of plaintiff after receiving balance sale consideration amount of Rs.1,90,000/- and time fixed for execution of sale deed between plaintiff and first defendant for 7 months in the agreement of sale. The plaintiff was ever ready and willing to obtain sale deed to perform his part of contract of obligation but, first defendant evaded and failed to 5 OS. No.4176/1997 execute sale deed in his favour. Plaintiff requested the first defendant to execute sale deed by making repeated requests and demands and legal notice also issued to first defendant, but, she has not replied the legal notice caused by the plaintiff. The plaintiff further alleged that he had came to the knowledge that first defendant has subsequently entered into an agreement of sale in respect of all 5 shops including schedule shop to defendant No.2 to 4 for a sum of Rs.10,00,000/- and she has taken advance amount of Rs.5,00,000/- from defendant No.2 to 4 and taking advantage of this agreement, defendant No.2 to 4 had started harassing the plaintiff and directed the plaintiff to evict the shop premises or in the alternative, to pay higher rents or higher advance amount. Plaintiff has no other alternative, constrained to file a suit for permanent injunction in O.S. No.8301/1996 on the file of Addl.City Civil and Sessions Judge,Bengaluru(CCH10) and for certain other reliefs in that suit. The court has granted injunction order of status quo in respect of shop premises in which plaintiff was tenant. The first defendant is trying to execute sale deed in favour of defendant No.2 to 4. Hence, plaintiff left with no alternative constrained to file this suit for specific performance of contract and plaintiff alleged cause of action arose on 1.10.1996 and also on subsequent dates, plaintiff got cause of action to file this suit. Hence, he prayed for decree of 6 OS. No.4176/1997 specific performance of contract and consequential relief of permanent injunction.
3. The defendant No1 filed his written statement admitting her ownership over the shop premises situated in Sy.No.63 , H.Siddaiah road, Bengaluru, but, first defendant denied that plaintiff was tenant under her for the last 30 years and defendant No.1 denied the allegations in para-3 of the plaint and she further contended that alleged agreement of sale dated: 1/10/1996 is forged and fabricated document prepared by the plaintiff or somebody on his behalf and have forged the signature and as such defendant No.1 denied the execution and attestation of sale agreement dated:
1/10/1996 and she also denies the receipt of advance amount of Rs.10,000/- from the plaintiff on 1/10/1996. Defendant No.l denied para-4 of the plaint allegations contending that these averments are false and concocted and defendant No.1 contended that when she entered an agreement of sale or execution of written agreement and this question of failure of execution of sale deed does not arise. Defendant No.1 denied the rest of the plaint allegations in toto and she denied the right to answer in respect of O.S.No.8301/1996 as defendant No.1 denied her knowledge regarding filing of that suit filed by plaintiff and defendant No.1 denied the cause of action as stated by the plaintiff and 7 OS. No.4176/1997 also contended that there is relationship of vendor and purchaser between plaintiff and herself and plaintiff has crated forged document and filed a false suit to obtain exparte orders. Hence, this suit is not maintainable and liable to be dismissed and defendant No.1 reserves her right to prosecute the plaintiff for forgery and other related offences committed by the plaintiff. Hence, defendant No.1 prayed for dismissal of the suit.
4. Defendant No.5 filed written statement contending that, the suit of the plaintiff is not maintainable either in law or facts of the case. Defendant No.5 denied his knowledge about alleged agreement of sale. However, defendant No.5 admits that first defendant being absolute owner of shop premises bearing No. 1 building No. 63, H.Siddaiah road, Bengaluru and defendant No.1 denied that plaintiff was tenant earlier under defendant No.1's father and subsequently he is tenant under first defendant for the last 30 years and defendant No.5 contended that one Mohammad of Kerala was tenant in respect of schedule premises and plaintiff entered the schedule premises as a sub-tenant and subsequently started claiming as tenant and subsequently for purchase of suit schedule property by the 5th defendant, plaintiff has attorned the tenancy in favour of defendant No.5 and plaintiff is defaulter in payment of rent and he is not paying rent in respect of schedule premises to the 5th 8 OS. No.4176/1997 defendant. Hence, under these circumstances, tenancy of plaintiff in respect of suit shop premises is terminated by due process of law and proceedings of ejectment was also initiated in the competent court of law. The first defendant has executed an agreement of sale dated 1.10.1997 to sell the suit schedule property to the plaintiff for consideration of Rs.2,00,000/- and received advance amount of Rs.10,000/- and agreed to execute sale deed within 7 months by receiving balance sale consideration amount is utter falsehood and therefore, denied in toto and on the contrary, defendant No.5 contended that suit agreement is fabricated document and signature of first defendant is forged and defendant No.5 in para-6 of his written statement contended that, first defendant has entered into agreement of sale in respect of all 5 shops including suit schedule property in favour of defendant no.2 to 4 for a sum of Rs.10,00,000/- and has taken advance amount of Rs.5,00,000/- from defendant No.2 to 4 from them and that taking advantage of this agreement, defendant No.2 to 4 started harassing plaintiff to vacate the shop or in the alternative to pay higher rents and higher advance amount is utter false and denied as baseless and defendant No.5 denied the plaint allegations in toto and he contended that first defendant has sold the suit schedule property in his favour on 9.12.1998 by executing registered sale deed and defendant No.5 denied rest of the plaint 9 OS. No.4176/1997 allegations and plaintiff has filed a suit for injunction and even assuming that there was an order of status quo granted in that suit and there was no bar against first defendant from executing sale deed in favour of 5th defendant. Since the defendant No.5 is not a party to O.S.No.8301/196 and there is no prohibition order or injunction order against first defendant restraining her from executing sale deed in favour of defendant No.5. Hence, defendant No.5 contended that he is a bonafide purchaser of suit schedule property for valuable consideration without having knowledge of any order passed in O.S.No.8301/1996 and there was no agreement of sale executed by first defendant in favour of plaintiff and as such there was no legal impediment for defendant No.1 to execute sale deed in favour of defendant No.5 and defendant No.5 further contended that this suit filed by the plaintiff is not maintainable for the simple reason that it is hit by provisions of Order 2 Rule 2 of C.P.C and plaintiff should have file suit for the whole agreement including the relief of specific performance in O.S.No.8301/1996. Hence, this suit is not maintainable and plaintiff has no sought for declaration of sale deed executed by first defendant in favour of 5th defendant as null and void by including the same relief under an amendment to the memorandum of plaint and since this relief sought for is declaration of sale deed and plaintiff is bound to pay court fee on the market value of the suit 10 OS. No.4176/1997 schedule property and not on the sale consideration amount as mentioned in the agreement of sale. The plaintiff has not paid proper and sufficient court fee and on this count also suit is liable to be dismissed and 5th defendant has terminated tenancy of plaintiff in respect of suit schedule premises and he has filed a suit for ejectment against plaintiff which was decreed and plaintiff by adopting the delaying tactics now filed a Mis. Petition to set aside the said order passed in eviction proceedings in the suit filed by defendant No.5 for ejectment. Having attorned the tenancy of the suit schedule property in favour of 5th defendant plaintiff had acknowledged the sale of suit schedule property in favour of defendant No.5 and plaintiff has waived his right to claim any alleged agreement of sale and if at all any agreement existed, wherein plaintiff is estopped from abrobate and rebrobate with respect of the same transaction. Hence, defendant No.5 with this defence, resisted the suit and prayed for dismissal of the suit filed by the plaintiff with exemplary costs in the interest of justice and equity.
5. Based upon these pleadings, the following issues are framed for trial of the suit :-
1. Whether the plaintiff proves that 1st defendant agreed to sell the suit property for a consideration of Rs.2,00,000/- and 11 OS. No.4176/1997 executed an agreement of sale dated 1.10.1996?
Issue No.1 is recasted as per the order dated 23.6.2003 as follows:-
Whether the plaintiff proves that the first defendant agreed to sell the suit schedule property for a consideration of Rs.2,00,000/- and executed an agreement of sale dated: 1.10.1996?
2. Whether the plaintiff proves that he has paid advance sale consideration of Rs.10,000/- to the 1st defendant?
3. Whether the plaintiff proves that he has been ready and willing to perform his part of contract?
4. Whether the plaintiff proves that he is entitled for Specific performance of the contract?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendant No.5 proves that he is a bonafide purchaser of the suit schedule property for value and without the notice of order or the agreement of sale in favour of the plaintiff?
2. Whether the defendant No.5 proves that the suit is hit by Order Ii Rule 2 of CPC as alleged in para No.11 of the written statement?
12 OS. No.4176/19975. In order to prove the above issues, the plaintiff himself is examined as PW.1 and another witness examined as P.W.2 and got marked Ex.p.1 to P.13 and closed side and defendant No.1 is examined as DW.1 and in her evidence, no documents are came to be marked. With this evidence, defendant No.1 closed her evidence, Thereafter, the suit is posted for arguments.
6. Heard the arguments of both sides and posted the suit for judgment.
In support of his case, the advocate for plaintiff has relied upon the following decisions:-
1. AIR 2013 Supreme Court 2235 ( Jehal Tanti and others Vs. Nageshwar Singh (D) their LRs)
2. AIR 2015 Karnataka 142 ( Balabai Vithoba Shirole and another Vs. Narayan Krishna Salunke and another)
7. On appreciation of the pleadings filed in this suit and on appreciation of evidence of plaintiff i.e., PW.1 and P.W.2, and documents Ex.P.1 to P.13 and that of DW.1 and considering the arguments addressed by the respective counsel, I answer the above issues are as follows:-
13 OS. No.4176/1997Issue No.1 to 3: In the affirmative;
Issue No.4: Plaintiff is entitled for the relief of
specific performance of contract in
respect of sale agreement dated
1.10.1996
Additional Issue No.1: In negative
Additional Issue No.2: In negative
Issue No.5: Suit of the plaintiff deserves to be
decreed with costs against
defendant No.1 to 5 for the following
reasons:
REASONS
8. Issue No.1 and 2: These issues are interconnected
to each other and hence, they are taken up for discussion together in order to avoid the repetition of facts and evidence.
9. The plaintiff has filed this suit for specific performance of contract initially against defendant No.1 to 4 and thereafter, the plaintiff got impleaded defendant No.5, who claims to be pendentelite purchaser of schedule property from 1st defendant and accordingly, plaintiff has filed impleading application in order to implead the subsequent purchaser (Pendentelite purchaser) of schedule property and filed I.A.No.3 on 10.9.1999 and this application came to be allowed by this court and accordingly, defendant No.5 has 14 OS. No.4176/1997 been ordered to be impleaded vide order dated 29.1.2001 and accordingly, defendant No.5 is impleaded in this case. It is the case of the plaintiff that the 1st defendant being the landlady and absolute owner of suit schedule property i.e., shop premises bearing shop No.1 situated in Krishnappa Building Sy.No.63 of H.Siddaiah Road, Bengaluru as prescribed in the plaint schedule, wherein plaintiff is tenant under defendant No.1 on monthly rental of Rs.400/- and plaintiff is running his automobile business in the suit schedule shop and it was agreed by the 1st defendant that she intended to sell the shop in favour of plaintiff, who is tenant since long years in the schedule property and accordingly, plaintiff and 1st defendant entered into sale agreement in respect of suit schedule property, wherein 1st defendant agreed to convey suit shop in favour of plaintiff for sale consideration of Rs.2,00,000/- and had received Rs.10,000/- as earnest money and remaining balance sale consideration amount was to be paid at the time of registration of the sale deed i.e., an amount of Rs.1,90,000/- and sale transaction should have been completed within 7 months from the date of execution of sale agreement and though plaintiff ready and willing to obtain sale deed, but 1st defendant failed to perform her part of contract and accordingly, plaintiff alleging these facts and also got amended the plaint after impleading defendant No.5 contending that 1st defendant inspite of 15 OS. No.4176/1997 injunction order granted in the suit has alienated the schedule property in favour of defendant No.5 during pendency of the suit by execution of sale deed on 9.12.1998 and hence, plaintiff has filed this suit for specific performance of contract based upon cause of action one stated in the plaint against defendant No.1 to 5 and also prayed for injunction relief as consequential relief along with main relief of specific performance of contract.
10. The defendant No.1 and 5 have contested the suit by filing written statement, wherein defendant No.1 denied execution of alleged sale agreement dated 1.0.1996 in favour of plaintiff and also denied receipt of part consideration amount and hence, defendant No.1 denied the claim of plaintiff and defendant No.1 specifically contended that sale agreement dated 1.10.1996 is created and fabricated document and plaintiff has forged the signature of 1st defendant on this agreement of sale and defendant No.5 denied the claim of plaintiff and defendant No.5 contended that he is bonafide purchaser of schedule property under sale deed dated 9.12.1998 and defendant No.5 denied his knowledge about alleged agreement of sale existed in favour of plaintiff and defendant No.1. Hence, defendant No.5 taken defense under Sec. 19(b) of Specific Relief Act claiming that he is bonafide purchaser of schedule shop under sale deed 16 OS. No.4176/1997 dated 9.12.1998 for valuable consideration and defendant No.5 also taken plea of suit not maintainable under Order 2 Rule 2 of CPC as plaintiff has filed the suit for injunction in O.S. No.8301/1996 and plaintiff ought to have included whole claim in the previous suit filed by him for injunction and he ought to have filed the suit for specific performance in that suit itself. Hence, this suit is barred under Order 2 Rule 2 of C.P.C.
11. Hence, in view of this rival contentions raised by the parties in the suit, the parties have adduced their respective oral and documentary evidence, wherein plaintiff himself is examined as P.W.1 by filing affidavit evidence on 19.11.2002, wherein plaintiff has filed evidence by way of affidavit under Order 18 Rule 4 of CPC and subsequently plaintiff/P.W.1 further examined on 25.2.2003 and got marked Ex.P.1 and P.2 i.e., agreement of sale dated 1.10.1996 and Ex.P.2 certified copy of sale deed dated 9.12.1998 and further plaintiff filed additional examination in chief affidavit under Order 18 Rule 4 of CPC on 25.2.2003 and P.W.1 further got examined himself and got marked Ex.P.1 to P.12 and P.W.1 in his affidavit evidence deposed that he is tenant under 1st defendant in respect of suit schedule shop premises bearing No.1 and defendant No.1 is the absolute owner of shop premises bearing No.1 as 17 OS. No.4176/1997 described in the plaint schedule and P.W.1 stated that he was tenant earlier under 1st defendant's father and subsequently, he was tenant in respect of the shop premises under 1st defendant and paying rent of Rs.400/- per month and 1st defendant is the owner of 5 shop premises including suit schedule property situated in property No.63, Krishnappa Building, H.Siddaiah Road, Bengaluru and 1st defendant had executed agreement of sale to sell schedule shop premises in favour of defendant No.5. Hence, P.W.1 deposed regarding execution of sale agreement by 1st defendant in the presence of attesting witnesses on 1.10.1996 and agreed to convey sale deed by receiving balance sale consideration amount of Rs.1,90,000/- and P.W.1 relied upon Ex.P.1 marked in his evidence sale agreement dated 10.10.1996 and he identified signature of himself as per Ex.P.1(a) and that of 1st defendant on Ex.P.1 marked at Ex.P.1(b) and P.W.1 also P.W.1 also stated that he came to know that 1st defendant subsequently entered into agreement to sell in respect of all the 5 shops including shop No.1 to defendant No.1 to 5 for a sum of Rs.10,00,000/- and 1st defendant had taken advance amount of Rs.5,00,000/- and taking advantage of this agreement, defendant No.2 to 4 started harassing him to vacate schedule shop or on the alternative insisted him to pay higher rent in respect of shop premises and also insisted to pay higher advance amount and at that time, he had no 18 OS. No.4176/1997 alternative left than to file a suit for injunction in O.S. No. 8301/1996 on the file of City Civil Judge(CCH No.10) Bengaluru for permanent injunction relief and in that suit, the said court has granted status-quo order in respect of possession of plaintiff in respect of shop premises No.1 and 1st defendant trying to execute sale deed in favour of defendant No.2 to 4 in respect of five shops including suit shop and without any alternative, he has filed the suit for specific performance of contract and even though 1st defendant has received the copy of notice of the suit and direction issued by this court not to alienate the schedule property to any 3rd parties, but 1st defendant has sold the schedule property in favour of defendant No.5 on 9.12.1996. Hence, 1st defendant is also liable for contempt of court order for disobedience of injunction order/status-quo order granted in this case. Hence, P.W.1 in his affidavit evidence deposed regarding execution of sale agreement by 1st defendant to sell the schedule shop premises No.1 in his favour and P.W.1 further examined in continuing of additional affidavit evidence and filed on 11.12.2007 and got marked Ex.P.3 to P.12. Hence, P.W.1 relying upon documents Ex.P.3 to P.13, wherein Ex.P.13 is marked in the evidence of P.W.2, wherein Ex.P.13 is the certified copy of deposition of 1st defendant deposed in C.C.No.20813/2003. Hence, P.W.1 relying upon his evidence coupled with 19 OS. No.4176/1997 documents Ex.p.1 to P.3, pray for grant of a decree for specific performance of contract and P.W.1 also deposed that he was/ is ready and willing to perform his part of contract and he has also deposed that defendant No.5, who has purchased the schedule property during pendency of the suit and the sale transaction is hit by lispendence and the said transaction is filed according to law and hence, P.W.1 denied the claim of defendant No.5 raised in this case as bonafide purchaser of schedule property for valuable consideration as per sale deed dated 9.12.1998. Hence, P.W.1 prayed for declaration that sale deed existed in favour of defendant No.5 is nonest, null and void and not binding upon him and defendant No.5 is also liable to execute sale deed in his favour along with defendant No.1 to 4. Hence, plaintiff prays to decree the suit as prayed for.
12. The counsel for defendant No.1 cross examined P.W.1, wherein he stated that he is aged about 47 years and P.W.1 denied that he has deposed falsely stating that he is tenant in respect of shop No.1 and since last 30 years ago. On the contrary, P.W.1 stated that he is the tenant in respect of schedule shop and he has documents to show that he was tenant under defendant No.1 and he stated that he is carrying on business in the schedule shop and he denied that he has sublet the premises to sub tenants and P.W.1 20 OS. No.4176/1997 denied that he has taken schedule shop on lease about 10 years back and he has let out shop premises to any 3rd parties and P.W.1 stated that he has records to show that the execution of agreement in favour of other occupants of the premises and P.W.1 stated that he has got records to prove his readiness and willingness and also he has got documentary evidence to show that he was ready with balance sale consideration amount of Rs.1,90,000/- . 1st defendant herself got prepared agreement of sale and P.W.1 admits that property number mentioned in the agreement of sale as 62 is false and measurement shown in the schedule of this agreement measuring east-west 29 ft is false and measurement shown north-south 11 ft., is also wrong and he do not know from whom stamp papers have purchased for preparation of agreement of sale and he do not know the name of the person, who has typed the agreement of sale. After going through the contents of agreement and satisfying himself that contents are true and correct, he has signed the agreement of sale and P.W.1 admits that 1st defendant is the wife of ex-minister and P.W.1 denied that 1st defendant had no intention of selling the shop premises and also not executed Ex.P.1 and not signed as per Ex.P.1(b) and P.W.1 denied that 1st defendant never disclosed her intention for sale of suit schedule shop premises to him and P.W.1 admits that there is no mention in the agreement of sale in respect of 21 OS. No.4176/1997 possession of the property will be delivered and P.W.1 denied that he has forged the signature of 1st defendant of Ex.P.1 as per Ex.P.1(b). P.W.1 stated that one Allah Bakash and Raju were attesting witnesses, who were present when 1st defendant had signed the agreement of sale Ex.P.1 and P.W.1 denied that he has deposed falsely stating that he has paid earnest amount of Rs.10,000/- to 1st defendant and P.W.1 denied the suggestion that just to continue his possession over the schedule property, he has fabricated Ex.P.1 the alleged agreement of sale and filed this false suit and P.W.1 denied the rest of the cross-examination directed to him and P.W.1 admits one Allah Bakash and Raju are also tenants under defendant No.1 in respect of other shops and P.W.1 stated the place of execution of agreement in the house of defendant No.1 and at that time, husband of 1st defendant was not present and P.W.1 stated that Raju has signed the agreement as witness for defendant No.1, but he do not know whereabouts of this attesting witness namely Raju and P.W.1 stated that his friend Wajid Pasha was present during the sale talks held 4-5 days prior the execution of sale agreement. When sale negotiations were held, the husband of defendant No.1 was also present and since 1st defendant's husband was not present when Ex.P.1 was executed and as such, he has not signed Ex.P.1 as witness and P.W.1 admits that husband of 1st defendant had 22 OS. No.4176/1997 filed complaint before Wilson Garden Police Station alleging offence of forgery against him on the alleged agreement of sale and police have called him in that connection and made enquiry and P.W.1 denied that he has not requisite funds to complete the sale transaction in order to obtain sale deed in respect of suit schedule property and has filed this false suit.
13. The counsel for defendant No.5 cross examined to P.W.1, wherein P.W.1 admits that he is tenant for the last 30 years in respect of shop No.1 and he admits that the defendant No.5 purchased suit schedule property about one year back and he do not know whether there was an agreement of sale exists between defendant No.5 and defendant No.1 dated 5.1.1996 and P.W.1 admits that he has not paid any rent to defendant No.5 and P.W.1 further admits that he has not deposited rent in respect of shop premises nor paid to defendant No.1. However, P.W.1 stated that he is ready to pay the rent and P.W.1 denied the suggestion that there was no agreement of sale executed between him and 1st defendant as stated by him.
14. P.W.1 after filing of additional chief examination affidavit and after marking of documents from Ex.P.3 to Ex.P.12, wherein counsel for defendant No.5 cross examined P.W.1 on 31.5.2008, wherein P.W.1 admits that he has 23 OS. No.4176/1997 obtained schedule shop from original owner Sri. Krishnappa about 30 years ago and he entered into lease agreement with original owner Krishnappa and he further stated that in the said building known as Krishnappa Building and there are 20 shops and shop No.1 i.e., suit ship is situated in ground floor and there was partition between 1st defendant and her sister i.e., daughter of Krishnappa namely Smt. Kalpana Nagaraj and Smt. Uma Bachegowda. These shops have been divided amongst two daughters of original owner Krishnappa and suit shop was fallen to the share of 1st defendant and he was paying rent to 1st defendant and she was issuing receipt and P.W.1 stated that he was paying rent for about 15-20 years to 1st defendant in respect of shop No.1 and he do not know whether Sri. Wazid Pasha was tenant in respect of shop allotted to Kalpana Nagaraj and P.W.1 stated that shop run by Wazid Pasha is also belongs to 1st defendant herein and P.W.1 admits that he know Wazid Pasha since about 10 to 20 years ago and P.W.1 denied his knowledge that one Wazid Pasha is rowdy sheeter and against him several criminal cases have been filed and P.W.1 denied that he has filed Ex.P.3 document, which is not concerned to defendant No.1 and P.W.1 stated that in the criminal case filed in respect of Wazid Pasha, the original document of Ex.P.3 was produced and P.W.1 stated that he has obtained certified copy of Ex.P.3 and he admits that he is not party in that 24 OS. No.4176/1997 criminal case and P.W.1 stated that he has obtained the copy from Wazid Pasha and thereafter got attested through Notary Public and P.W.1 admits that there is no endorsement on Ex.P.3 of any court seal to show that Wazid Pasha has obtained original documents from the court and P.W.1 denied that he has created Ex.P.3 and there is no original of Ex.P.3 inexistence and P.W.1 admits that he has got certified copy of Ex.P.4 and he can produce it and P.W.1 admits that the defendant No.5 had filed the suit as per Ex.P.5 before Mayo hall court against him and it was ended in decree and P.W.1 stated that there is no nexus between him and document Ex.P.10 and P.W.1 admits that prior to filing the suit, he has filed O.S. No.8301/1996 against 1st defendant herein and he do not know whether that suit is pending or not. P.W.1 confronted with the certified copy of plaint and also order sheet of O.S. No.8301/1996, wherein he admits that these two documents of confrontation and they are marked at Ex.D.1 and Ex.D.2.
15. P.W.1 again cross examined by counsel for defendant No.5 on 15.7.2008, wherein P.W.1 admits that he has filed O.S. No.8301/1996 against 5 defendants and this suit has been filed against defendant No.1 and defendant No.2, 3 and 5 on the basis of sale agreement and P.W.1 denied that he has filed the suit alleging threat of 25 OS. No.4176/1997 dispossession and had sought for prohibitory injunction order and P.W.1 admits that he has filed O.S. No.8301/1996 on 29.11.1996 and P.W.1 do not remember whether in O.S. No.8301/1996 he has made reference regarding agreement of sale dated 1.10.1996 got executed by 1st defendant and P.W.1 denied that Ex.P.2 is created document and he denied that 1st defendant has not executed Ex.P.1 in his favour and P.W.1 denied that he has knowledge of sale agreement executed by 1st defendant in favour of others and P.W.1 specifically denied that he has created Ex.P.1 and has filed false suit against defendants. A question was posted to P.W.1 that still, he is tenant in respect of shop premises and for that, P.W.1 answered that he has purchased shop premises and rest of the cross-examination is denied by this witness.
16. P.W.2 is witness for the plaintiff examined in this case on 24.9.2003, who has filed this affidavit evidence under Order 18 Rule 4 of CPC, wherein P.W.2 stated to be a tenant in respect of shop No.5 in property No.63, Krishnappa Building, H.Siddaiah Road, Bengaluru and P.W.2 stated that he is tenant under 1st defendant, who is landlady and he is paying rent to her and P.W.2 deposed that plaintiff is tenant in respect of shop remises under 1st defendant and he was paying rent at the rate of Rs.400/- per month and on perusal of this affidavit evidence, wherein P.W.1 deposed that there is 26 OS. No.4176/1997 sale agreement came to be executed between plaintiff and 1st defendant in respect of shop No.1 on 1.0.1996 and plaintiff has paid a sum of Rs.10,000/- as advance amount to 1st defendant and she has executed sale agreement in favour of plaintiff. Hence, P.W.1 in para No.6 of his deposition deposed regarding execution of sale agreement by 1st defendant as per Ex.P.1 on 1.10.1996 and P.W.2 got marked on 1.10.1996 and P.W.2 got marked certified copy of the deposition of 1st defendant deposed in criminal case C.C.No.20803/2003 as per Ex.P.13. Hence, P.W.2 deposed regarding Ex.P.1 executed in favour of plaintiff herein by 1st defendant on 1.10.1996.
17. The counsel appearing for defendant No.1 cross examined P.W.2 on 12.12.2003.
P.W.2 admits that since the year 1996, he is not paying any rent in respect of shop No.5 of building No.63 Krishnappa Building, N.Siddaiah Road, Bengaluru and he has not deposited the rent before this court and P.W.2 admits that he has not filed any suit against defendant No.1 seeking the relief of specific performance of contract in respect of shop No.5 and he admits that he has not issued nay notice to defendant No.1 calling upon her to execute and registered the sale deed in his favour and P.W.2 denied his 27 OS. No.4176/1997 knowledge whether defendant No.5 had purchased shop No.5 from defendant No.1 and he denied that he is deposing falsely that the defendant No.1 had agreed to sell the shop No.5 in his favour and also received advance amount of Rs.20,000/- from him and he has not recovered the rent from any of the tenants at the instance of defendant No.1. The defendant No.1 has executed document in his favour permitting him to look after the passage and the first floor of the building and P.W.2 denied that defendant No.1 has not at all executed any document in his favour in respect of property No.63, Krishnappa Building , H.Siddaiah Road, Bengaluru . P.W.2 admits that he has filed eviction petition as power of attorney in HRC No.971/2000 in respect of shop No.10 building of Smt. Kalpana Nagaraj and he admits that after taking possession of the said shop, the court has ordered for delivery of possession of the said shop to the tenant. It is denied by P.W.2 that even though power of attorney was given to him was cancelled by Smt. Kalpana Nagaraj, he has filed eviction proceedings/petition and obtained an eviction order. One Arogya Mary, Abdul Basheer and Wazid Pasha have purchased the shop in Smt. Kalpana Nagaraj building and P.W.2 denied that he has forged the signature of Basheer Ahamed to the agreement of sale as well as to the sale deed and in that connection, both civil and criminal cases are pending and P.W.2 stated that himself and Arogya Mary 28 OS. No.4176/1997 have filed the suit in O.S. No.2233/2000 against Abdul Basheer and Chand Begum for the relief of permanent injunction and Abdul Basheer has filed a suit in C.C.No.14928/1998 and C.C.No.14900/1998 and P.W.2 denied that himself and plaintiff of this suit are both accused in C.C.No.14348/1998 and P.W.2 denied that he is one of the accused in C.C.No.1006/1999 and P.W.2 further stated that he is not witness to the agreement of sale executed by 1st defendant in favour of plaintiff and P.W.2 stated that though advance amount of Rs.10,000/- was paid 3-4 days prior to the agreement, but it is mentioned in agreement stating that the said advance was paid on the date of agreement of sale. P.W.2 stated that payment of amount of Rs.10,000/- was mentioned in the agreement of sale and he denied that plaintiff is close friend and P.W.2 stated that there is enmity between him and plaintiff and P.W.2 further stated that at the time of payment of advance amount of Rs10,000/-, himself, plaintiff and defendant No.1 alone were present and P.W.2 denied that just to help the plaintiff, he is deposing false evidence in this suit and P.W.2 denied that himself and plaintiff have forged the signatures and created suit agreement of sale and he admits that he has filed civil suits, which are pending and P.W.2 admits that he has not occupied witness to the document under which, 1st defendant had sold shop No.2,3 and 4 and P.W.2 denied that 29 OS. No.4176/1997 himself took the tenants of shop premises 2, 3 and 4 by name Ayub, Iqbal Pasha and Madan to defendant No.1 at the time of sale negotiations of the property in their favour and P.W.2 denied that he is deposing false evidence at the instance of the plaintiff and in the evidence of P.W.2, the certified copy of deposition of 1st defendant in C.C.No.20813/2003 is marked at Ex.P.13.
18. Defendant No.1 filed her affidavit evidence in lieu of examination-in-chief on 19.3.2004 and her affidavit sworn to by 1st defendant is treated as examination-in-chief filed in this case. But subsequently, defendant No.1 i.e., P.W.1 did not turned up to depose further in this suit and to face cross-examination, wherein defendant No1. remained absent on hearing dates in this suit and even this court granted time to D.W.1 to appear for cross-examination by levied cost on 7.2.2006, but D.W.1 remained absent and this court on 3.3.2006 noted the absence of D.W.1 and passed order stating that inspite of granting sufficient opportunities m D.W.1 has failed to appear before this court for cross- examination and hence, it is taken as evidence of D.W.1 was closed and witness discharged and even defendant side was closed. Hence, the affidavit filed by 1st defendant accepted as examination-in-chief is not admissible for acceptance and it is not complete evidence, which is not tested for cross-
30 OS. No.4176/1997examination. Hence, there is no evidence on behalf of evidence in this suit. Even defendant No.5 was granted with sufficient opportunity to lead evidence in the above suit.
19. Though defendant No.5 has claimed that he is subsequent purchaser of suit schedule property from defendant No.1 and defendant No.5 has set up claim on bonafide purchaser taking defense under Sec. 19(b) of Specific Relief Act and also he has taken specific defense of Order 2 Rule 2 of CPC, but defendant No.5 failed to adduce any oral or documentary evidence inspite of grant of sufficient opportunity in this case. Hence, on appreciation of evidence placed on record, wherein the plaintiff had examining himself and by examining P.W.2 and by producing documentary evidence, wherein plaintiff has produced original agreement of sale dated 1.9.1996 executed in his favour by 1st defendant in respect of shop premises bearing No.1, Krishnappa Building , and defendant No.1 had received earnest amount of Rs.10,000/- under Ex.P.1 transaction and defendant No.1 agreed to execute sale deed by receiving balance sale consideration amount and time stipulated under the agreement of sale was not the essence of the contract, wherein the evidence of P.W.1 and 2 deserves to be accepted, wherein P.W.1 and 2 have deposed trustworthy evidence in support of the case made out by the plaintiff herein and as 31 OS. No.4176/1997 such, plaintiff has proved that 1st defendant has executed agreement to sell in his favour as per Ex.P.1 on 1.10.1996 agreeing to sell the schedule property for sale consideration amount of Rs.2,00,000/- and plaintiff also proved that the 1st defendant has received earnest amount of Rs.10,000/-. Accordingly, Issue No.1 and 2 are answered in affirmative.
20. Issue No.3: The plaintiff in his pleadings, has pleaded and averred the ingredients of Sec.16(c) of Specific Relief Act, wherein plaintiff stated that he is ever ready and willing to perform his part of contract and alsopw1 in his affidavit evidence deposed his readiness and willingness to perform his part of contract by paying balance sale consideration amount to 1st defendant and P.W.1 in para No.3 of his affidavit evidence filed on 19.11.2002, deposed that he was ready to perform his part of the contract and he was ready to pay balance sale consideration amount and also he is ready to bear the expenses of registration, but 1st defendant has evaded and failed to execute the registered sale deed in his favour inspite of repeated requests and demands and P.W.1 stated that he has caused legal notice to 1st defendant seeking for execution of sale deed and thereafter, he came to know that 1st defendant had subsequently entered into an agreement to sell in respect of all the five shops including schedule shop in favour of 32 OS. No.4176/1997 defendant No.2 to 4 and she has received advance amount from them and taking advantage of alleged agreement of sale, defendant No.2 to 4 started harassing him to vacate the schedule premises or to pay higher rent and alternatively higher advance amount and at that time, he had no alternative than to file the suit for injunction on the file of CCH No.10 for grant of permanent injunction relief and in that suit, he has obtained status-quo order. Hence, P.W.1 in his affidavit evidence filed on 19.11.2002 and also in the pleadings pleaded his readiness and willingness in order to compliance to ingredients of Sec.16(c) of Specific Relief Act. Hence, considering the pleadings, oral evidence of P.W.1 since plaintiff is a tenant in respect of shop No.1 under defendant No.1 since many years, wherein plaintiff is doing business in shop No.1 and as such, plaintiff is having financial capacity to pay balance sale consideration amount of Rs.1,90,000/-. Hence, I hold that the plaintiff has proved his readiness and willingness in compliance to Sec.16(c) of Specific Relief Act. Accordingly, Issue No.3 is answered in affirmative.
21. Additional Issue No.1: The plaintiff has impleaded defendant No.5 subsequently in this suit as defendant No.5 has purchased the suit schedule property from defendants during pendency of the suit on 9.12.1998 33 OS. No.4176/1997 under registered sale deed and plaintiff has filed I.A.No.3 on 10.9.1999 seeking for impleadment of defendant No.5 and this court after hearing both sides and after causing notice to proposed defendant No.5 allowed I.A.No.3 filed by the plaintiff under Order 1 Rule 10(2) of CPC and order to implead defendant No.5, who is subsequent purchaser of the suit schedule property under sale deed dated 9.12.1998 and plaintiff also got amended the pleadings by filing I.A.No.4 under Order 6 Rule 17 of CPC stating that 1st defendant has sold the suit schedule property to 5th defendant on 9.12.1998 by execution of sale deed inspite of having knowledge of Ex.P.1 executed by her and also during pendency of the suit and during subsistence of status-quo order against 1st defendant was operating not to alienate the suit schedule property and inspite of pendency of suit and status-quo order, 1st defendant has sold the property shop No.1 in favour of defendant No.5. Hence, the sale transaction is void and not binding upon plaintiff and plaintiff has sought for declaration in respect of sale deed dated 9.12.1998 is null and void and though defendant No.5 has filed his written statement after his impleadment in this suit and contesting the suit by filing written statement on 17.10.2006. But defendant No.5 failed to lead any rebuttal evidence in order to prove his contention and on perusal of records of this case, wherein plaintiff has filed application at the inception of suit 34 OS. No.4176/1997 seeking for prohibitory orders against 1st defendant and suit was filed on 2.6.1997 and this court has passed interim order of status-quo against defendant No.1 directing her to maintain status-quo in respect of the suit schedule property till disposal of I.A.No.2 and the interim order was continued from hearing dates to next hearing dates and the contention of defendant No.5 raised in this case that he is bonafide purchaser of the suit schedule property under value as per sale deed dated 9.12.1998, wherein apparently the sale deed dated 9.12.1998, one executed by defendant No.1 in favour of defendant No.5 is during pendency of the suit and also during subsistence of status-quo order passed against 1st defendant on 8.7.1999 and plaintiff also filed interim application in this suit under Order 39 Rule 2(A) read with Sec.151 of CPC in I.A.No.6 seeking for issue of warrant arrest and to attach property of 1st defendant for committing breach/disobedience of injunction order passed in this suit and by perusal of the affidavit sworn to by the plaintiff filed in I.A.No.6, wherein he stated that defendant No.1 knowingly execution of sale agreement dated 1.10.1996 has sold schedule property in favour of defendant No.5 by execution of sale deed dated 9.12.1998 for Rs.2,00,000/- and defendant No.1 has grossly disobeyed the orders of this court. Hence, defendant No.1 is liable for disobedience of orders passed by this court. However this application filed by the plaintiff is 35 OS. No.4176/1997 not pressed in this case. However, on perusal of order sheet, plaintiff has filed I.A.No.1 along with the suit on 31.5.1997 praying for ad-interim temporary injunction against 1st defendant restraining her from alienating/registering sale deed in respect of suit schedule property in favour of defendant No.2 to 4 and there is interim order passed by this court restraining 1st defendant by prohibitory order and as such, the sale deed standing in the name of defendant No.5 is during pendency of the suit and during subsistence of status-quo order passed against defendant No.1 and hence, the sale deed relied by the defendant No.5 is attracted with Sec.52 of T.P.Act (Doctrine of Lispendence). Hence, defendant No.5 has not led any oral or documentary evidence in order to prove his contention of bonafide purchaser to get benefit of Sec.19(b) of Specific Relief Act and hence, I hold that defendant No.5 failed to prove Additional Issue No.1 raised in this suit. Accordingly, Additional Issue No.1 is answered in negative.
22. Additional Issue No.2: The defendant No.5 also taken up specific contention in his written statement stating that the suit filed by the plaintiff for specific performance of contract is hit by Order 2 Rule 2 of CPC and this contention is urged by defendant No.5 in para No.11 of his written statement. After considering the arguments submitted by 36 OS. No.4176/1997 counsel for the plaintiff and also after perusal of written statement of defendant No.5 and the other evidence available on record, wherein the plaintiff has filed previous suit in O.S. No.8301/1996 for the relief of permanent injunction against defendant No.2 to 4, wherein defendant No.2 to 4 on the strength of alleged agreement of sale executed by 1st defendant or threatening the plaintiff of dispossession of the suit shop and also causing interference over the plaintiff's possession and hence, plaintiff in his affidavit evidence stated that he was constrained to file a suit for injunction against defendant No.2 to 4 in order to protect his possession in respect of suit schedule property and P.W.1 stated that he has filed this suit against defendant No.1 to 4 initially for specific performance of contract based upon different cause of action and plaintiff has made reference of he filed the suit in O.S. No.8301/1996 for the relief of permanent injunction in para No.5 of the plaint and considering the cause of action as stated in para No.8 of the plaint to file this suit, wherein plaintiff has filed this suit on 31.5.1997 based upon Ex.P.1 and also on the cause of action when there is interference for his possession and as such, considering the cause of action as pleaded by the plaintiff and considering the cause of action made out in O.S. No.8301/1996, wherein in order to take defense as per Order 2 Rule 2 of CPC, wherein defendant No.5 shall have to produce the certified copy of 37 OS. No.4176/1997 pleadings of O.S. No.8301/1996 and to confront the said document in the cross-examination of P.W.1 and then only the defense one set up under Order 2 Rule 2 of CPC in the subsequent suit is held to be proved, but in this case, defendant No.5 though cross examined P.W.1, but there is no confrontation of document of previous suit filed by the plaintiff to P.W.1 of O.S. No.8301/1996. Hence, defendant No.5 failed to prove his defense as taken in the written statement that the suit filed by the plaintiff subsequent to O.S. No.8301/1996 is barred under Order 2 Rule 2 of C.P.C. On the contrary, by considering the pleadings and evidence placed on record, wherein the said suit filed by the plaintiff in O.S. No.8301/1996 and the present suit on two different cause of action and as such, the suit is not barred under Order 2 Rule 2 of CPC and accordingly, I answer Additional Issue No.2 framed on 31.8.2007 is in negative against defendant No.5.
23. Issue No.4: This issue is framed in respect of the relief sought for by the plaintiff against defendant No.1 to
5. This court has already held that plaintiff has proved Ex.P.1 executed by 1st defendant in his favour and also he has proved that he has advanced the amount of Rs.10,000/- under Ex.P.1 to defendant No.1 and further plaintiff proved the ingredients of Sec.16(c) of Specific Relief Act i.e., plea of 38 OS. No.4176/1997 readiness and willingness and since plaintiff is tenant under 1st defendant and established his business and plaintiff and his family are depending upon the income derived from the business run by the plaintiff in the suit shop, wherein defendant No.1 had agreed to convey the schedule shop in his favour under Ex.P.1 and received earnest money, but she failed to execute sale deed in favour of plaintiff and also she has not terminated the contract by issuance of notice to plaintiff, but defendant No.1 has sold the schedule property on 9.12.1998 during pendency of the suit and during order of injunction subsisting against her. Hence, plaintiff, who is a tenant occupying shop premises is entitled to get specific performance relief and the discretion to be exercised under Sec. 20 of Specific Relief Act is in favour of plaintiff, who has approached this court of law seeking for justice and hence, after exercise of discretion as per Sec.20 of Specific Relief Act, plaintiff is entitled to get specific performance decree at the hands of this court and defendant No.5 has not pleaded any hardship as required under Sec. 20(2) of Specific Relief Act and defendant No.5 purchased the schedule property during pendency of suit and during subsistence of injunction order. Hence, sale deed dated 9.12.1998 becomes nonest and void transaction. Hence, plaintiff is entitled for the relief of specific performance of contract as per Ex.P.1. Accordingly, Issue No.4 is answered in affirmative.
39 OS. No.4176/199724. Issue No.4: In view of my findings submitted on Issue No. 1 to 4 and Additional Issue No.1 and 2, the suit filed by the plaintiff deserves to be decreed with costs against defendant No.1 to 5. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff is decreed with costs against defendants 1 to 5.
The plaintiff is entitled for the relief of specific performance of contract in respect of Ex.P.1 and defendant No.1 and D.5 are directed to execute sale deed in favour of plaintiff after receiving balance sale consideration amount of Rs.1,90,000/- to be deposited by the plaintiff in this suit within three months from the date of deposit of balance sale consideration amount.
Plaintiff shall deposit the balance sale consideration amount within one month from the date of pronouncement of judgment in this suit and in case defendants failed to execute sale deed, then plaintiff shall get execute the sale deed through process of law under Order 21 Rule 34 of C.P.C.40 OS. No.4176/1997
Defendants shall not alienate the suit schedule property to any 3rd party till plaintiff get executed sale deed in respect of suit shop.
Hence, interim order of status-quo is continued till plaintiff get executed sale deed in his favour as per the terms of Ex.P.1.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 27th day of February, 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.Noorulla Sharieff P.W.2 Sri.Wajid Pasha
List of documents exhibited for plaintiff:-
Ex.P.1 Original agreement of sale dated
1.10.1996 executed between Uma
Bachegowda and Noorulla Sharief
41 OS. No.4176/1997
Ex.p.2 Certified copy of absolute sale deed
executed between Uma Bachegowda
and Sri. B.H.Mohammed Mahaboob
Pasha executed on 9.12.1998
Ex.P.3: Certified copy of Register of Wilson
Garden Police Station shown as 5th
defendant as rowdy sheeter,
Ex.P.4: Certified copy of order in C.A
No.39/2003
Ex.P.5: Certified copy of plaint in O.S. No.
15205/2000
Ex.P.6: Certified copy of affidavit of defendant
No.5 in O.S. No. 15205/2000
Ex.P.7 & 8 Certified copies of judgment and
decree in O.S. No.15205/2000
Ex.P.9 Certified copy of miscellaneous case
No.15171/2004
Ex.P.10 & 11: Certified copies of judgment and
decree in O.S. No. 9966/1998
Ex.P.12: Photo regarding dispute in respect of
suit schedule property.
Ex.P.13: Certified copy of deposition of
defendant No.1 in
C.C.No.20813/2003
42 OS. No.4176/1997
List of witnesses examined for defendant:
DW.1 Smt. Uma Bachegowda
List of documents exhibited for Defendant:-
Ex.D.1 Certified copy of order sheet in O.S. No. 8301/1996 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 43 OS. No.4176/1997 44 OS. No.4176/1997