Karnataka High Court
Mohd. Gousuddin S/O Multanisab vs Irshad Girami Ors on 1 August, 2019
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
RSA No.7199/2011
C/w
RSA No.7198/2011
IN RSA No.7199/2011:
BETWEEN:
Gousuddin S/o Mohd.Multanisab
Aged about 51 years
Occ: Business
R/o Kamthana
Tq. & Dist. Bidar
... Appellant
(By Sri Ameet Kumar Deshpande, Advocate)
AND:
1. Irshad Girami
S/o Mohammed Laiquddin
Aged about 34 years
Occ: Agriculture
R/o Dikusha
Near Nehru Stadium, Bidar
2. Mohammed Ahmaduddin
S/o Mohammed Fasihuddin
2
Aged about 35 years
Occ: Agriculture
R/o Qazi Colony
Bidar
3. Syed Abdul Gani
S/o Syed Yasin
Aged about 75 years
Occ: Pensioner
R/o Village Kamthana
Tq. & Dist. Bidar
...Respondents
(By Sri M.M.Ali, Advocate
for Smt.Hema L.K., Advocate for R1 & R2;
Notice to R3 held sufficient v/o dtd 27.06.19)
This Regular Second Appeal is filed under Section
100 of CPC against the judgment and decree dated
29.03.2011 passed in R.A.No.12/2010 on the file of the
Presiding Officer Fast Track Court-I Bidar, dismissing the
appeal and confirming the judgment and decree dated
30.11.2009 passed in O.S.No.97/1996 on the file of the
Additional Civil Judge (Sr.Dn.) Bidar.
IN RSA No.7198/2011:
BETWEEN:
Gousuddin S/o Mohd.Multanisab
Aged about 51 years
Occ: Business, R/o Kamthana
Tq. & Dist. Bidar
... Appellant
(By Sri Ameet Kumar Deshpande, Advocate)
3
AND:
1. Irshad Girami
S/o Mohammed Laiquddin
Aged about 34 years
Occ: Agriculture
R/o Dikusha
Near Nehru Stadium, Bidar
2. Mohammed Ahmaduddin
S/o Mohammed Fasihuddin
Aged about 35 years
Occ: Agriculture
R/o Qazi Colony
Bidar
3. Syed Abdul Gani
S/o Syed Yasin
Aged about 75 years
Occ: Pensioner
R/o Village Kamthana
Tq. & Dist. Bidar
...Respondents
(By Sri M.M.Ali, Advocate
for Smt.Hema L.K., Advocate for R1 & R2;
R3 served)
This Regular Second Appeal is filed under Section
100 of CPC against the judgment and decree dated
29.03.2011 passed in R.A.No.10/2010 on the file of the
Presiding Officer Fast Track Court-I Bidar, allowing the
appeal and set aside the judgment and decree dated
30.11.2009 passed in O.S.No.97/1996 on the file of the
Additional Civil Judge (Sr.Dn.) Bidar.
4
These appeals coming on for hearing, this day, the
Court delivered the following:
JUDGMENT
These two appeals are directed against the judgment and decree passed by the learned Presiding Officer, Fast Track Court-I in R.A.No.10/2010 and R.A.No.12/2010 dated 29.03.2011.
2. The learned First Appellate Judge allowed the Regular Appeal No.10/2010 filed by the plaintiffs and dismissed R.A.No.12/2010 filed by the defendant No.1.
Case type Date of Result
disposal
O.S.No.97/1996 30/11/2009 Partly decreed
R.A.No.10/2010 29/03/2011 Allowed (filed by
plaintiffs)
R.A.No.12/2010 29/03/2011 Dismissed (filed
by def.No.1)
RSA No.7198/2011 01/08/2019 Filed by def.No.1
RSA No.7199/2011 01/08/2019 Filed by def.No.1
5
3. In order to avoid confusion and overlap, parties are referred to in accordance with the rankings held by them before the trial Court.
4. Plaintiffs - Irshad Girami and Mohammed Ahamaduddin filed suit for specific performance of contract in O.S.No.97/1996 seeking the said relief from the defendants - Md. Gousuddin and Syed Abdul Gani claiming that the defendants had entered into a sale agreement to sell suit schedule property that consisted of agricultural land in Sy.No.327/5 to the extent of 4 acres 38 guntas of Kamthana village. It was further pleaded that the defendants under the said sale agreement received the full consideration amount of Rs.18,000/- from the plaintiffs and in part performance of their contract delivered the actual possession of the schedule property to the plaintiffs. The schedule property was stated to be a granted property by the Government to the defendant with a condition that for a period of 15 years from the date of grant, the defendant was prohibited from disposing of the same. The 6 date of grant of land is stated to be 31.05.1979. Further the suit for specific performance came to be filed on 22.05.1996.
5. The learned trial Judge has considered the oral evidence of PWs.1 to 3 and got marked Exs.P1 to P11 on behalf of the plaintiffs.
6. The defendants have not filed any documents.
7. The defendant No.1 neither filed written statement nor adduced oral or documentary evidence. The right of the defendants to file written statement was forfeited and the defendants have not challenged the said order before the Appellate Court. The learned trial Judge found that the agreement on which relief of permanent injunction was granted, was not enforceable one and it is destitute of legal effects and for the said reasons among the others dismissed the suit.
8. The defendant No.2 against whom the specific performance was sought, sold the suit schedule property 7 through a registered sale deed in favour of defendant No.1. Thus, defendant No.1, who purchased the property from defendant No.2, preferred Regular Appeal No.12/2010; the plaintiffs preferred Regular Appeal No.10/2010 against the judgment and decree of dismissal of the suit for specific performance of contract; similarly, the relief of permanent injunction was granted to the plaintiffs, The learned first Appellate Judge disposed of both the regular appeals on 29.03.2011 wherein Regular Appeal filed in R.A. No.10/2010 by the plaintiffs came to be decreed. However, R.A.No.12/2010 filed by defendant No.1/appellant herein came to be dismissed.
9. In the above circumstances, defendant No.1/appellant has filed the present two regular second appeals in RSA No.7198/2011 and RSA No.7199/2011 against the dismissal of the Regular Appeal No.12/2010 preferred by him, for considering the following substantial questions of law.
8
1. Whether the courts below are justified in rejecting the application of the defendant No.1/appellant herein seeking permission to file the written statement?
2. Whether the courts below were justified innot considering the cross-examination of PWs.1 to 3 on the ground that the appellant has not filed the written statement?
3. Whether the lower Appellate Court is justified in granting specific performance of the suit agreement in favor of the plaintiff without considering the question of hardship on the defendant/appellant?
4. Whether the lower Appellate Court is justified declaring that the sale deed executed in favour of the appellant by the defendant no.2 is not binding on the plaintiff when the defendant no.1/appellant is a bonafide purchaser for value without notice?
9
10. Learned counsel for the appellant in both the cases, Sri Ameet Kumar Deshpande, would submit that basically defendant No.1 was deprived of opportunities as he could not get the benefit of principles of natural justice. The written statement filed by him before the trial Court was not considered by virtue of the order of the Court. He would further submit that application filed by him along with written statement subsequently came to be rejected and the written statement is still in the file and taken as not filed.
11. Learned counsel would further submit that no doubt, defendant No.1 did not adduce his oral evidence but he was cross-examined by the plaintiffs which was not considered by the first appellate Court.
12. Under the circumstances, the various facets that hover around the case as reflected in the substantial questions of law framed above. There are prohibitions against sale of property for 15 years on the score that the schedule property was a granted one on 31.05.1979. 10 Defendant No.2 sold the schedule property through a registered sale deed to defendant No.1 on 07.11.1995.
13. The sale agreement claimed by the plaintiffs is dated 25.11.1986 for a sale consideration of Rs.18,000/- and the entire sale consideration is stated to have been paid by the plaintiffs.
14. The understanding between the plaintiffs and defendant No.2 was that registered sale deed to be executed after a period of prohibition of 15 years was over. In the circumstances, the other claims and contentions raised by the parties are that plaintiffs claim part performance of the contract and takes shelter under Section 53 (A) of Transfer of Property Act and that they claim by virtue of an amendment.
15. Learned counsel for the plaintiffs Sri Meer Mohd. Ali would submit that there are absolutely no lapses or latches on the part of the plaintiffs. They have promptly paid Rs.18,000/- towards full sale consideration under the 11 sale agreement dated 25.11.1986. The plaintiffs were put in actual possession of the property by the defendant No.2 as he was the owner of the schedule property.
16. Learned counsel would further submit that there is no lapse in readiness and willingness on the part of plaintiffs to perform their part of contract.
17. Learned counsel would further submit that sale consideration of Rs.18,000/- was paid and substantial portion of their duty was done. The balance left over was the execution of the registered sale deed.
18. The, defendant No.1, claims that he is a bonafide purchaser for value and he purchased the property without any bad intention, to that extent he is innocent. It is also claimed that the learned Trial Court Judge erred in not providing him any opportunity to file his written statement.
19. Learned counsel for the plaintiffs, Sri Meer Mohd. Ali would submit that there is no question of bar of 12 limitation to the sale agreement, as it is in compliance with the law of limitation as the suit was filed well within a period of three years from due date as in the context, as there was no time period specifically fixed for the purpose.
20. In the context of the case, it is necessary to mention that grant of schedule property in favour of defendant No.2 was in the year 1979 and the sale agreement was entered into by them was in the year 1986 and the suit was filed on 22.05.1996.
21. It is further necessary to mention another aspect of the case regarding non-filing of the written statement. Whenever a litigant fails to perform his part of duty in time, may be in filing written statement or application or to cross-examine other party on several occasions and got the opportunity as exhausted but starts claiming the principle of natural justice on the last denial, if there are 10 lapses in complying the requirements for the purpose stated above and the prayer is rejected on 13 11th time, invariably the person at default would start claiming the principles of natural justice.
22. Insofar as the findings void agreement, voidable agreement and void ab initio as observed by the First Appellate Court may not be necessary to be adjudicated at this point, in view of the nature of disposal morefully stated below.
23. In this connection, learned counsel for plaintiffs, Sri Meer Mohd. Ali would submit that appearance of the defendant No.1 before the Court in O.S.No.97/1996 was on 30.11.2009. He would submit that defendant No.2 instead of filing written statement made application for returning the plaint under Order 7 Rule 10 of CPC. The said application was rejected. However, written statement was not complied and his written statement is taken as not filed.
24. Defendant No.1 filed application to permit him to file written statement along with the application on 19.07.2006 which came to be rejected on 12.10.2006. 14
25. In the circumstances, the cumulative effect of it, is that the matter was adjudicated sans written statement of defendant No.1. Regard being had to the fact that defendant No.2 having sold the schedule property to defendant No.1 cannot be expected to take personal interest in the case.
26. The matter for specific performance simplicitor being kept pending by the trial Court for a period of ten years is not fair and proper. Thus the party at default would invariably urge for one more opportunity. Further from the point of disposal of a case through default and contest, the latter one is preferable unless there is grave abuse of opportunity in not utilizing it when offered and waits for denial to keep the litigation pending. The present case does not appear to be such an abuse by the defendant No.1.
27. It cannot be forgotten that pendency of a case for an unreasonably long time not only delays the disposal but also paves way for supplemental proceedings. Under 15 the circumstances, the pendency of the suit also considered in the matter of filing application to seek opportunity to file written statement.
28. Learned trial Court Judge failed to take note of the question of opportunity to defendant No.1 by considering the written statement filed along with application with permission. The matter could have been adjudicated after giving full-fledged opportunities. It cannot be forgotten even after taking the written statement as not filed, it took three years for the trial Court to dispose of the matter.
29. Thus, I find that both the Trial Court and the First Appellate Court erred seriously in disposing of the matter. Insofar as substantial questions of law framed above are concerned. There may not be necessity to dispose of the prayer or to be considered at this juncture as the rights and duties of the parties are not adjudicated finally. The judgments and decrees of the Courts below are 16 liable to be set aside. Accordingly, the judgment and decree in R.A.No.10/2010 and RA No.12/2010 is set aside.
30. In the over all circumstances of the case, the written statement filed by the defendant No.1 deserves to be considered and the matter be adjudicated on full- fledged merits. The suit is of the year 1996 and such a long period has passed without filing written statement. In this connection, defendant No.1 is entitled to get his written statement considered, invariably by paying cost of Rs.20,000/- to the plaintiffs, and the matter deserves to be remanded to the trial Court.
31. In order to prevent further wastage of judicious time, the parties shall appear before the trial Court on 05.09.2019.
32. The learned trial Court judge shall take out the matter and consider the written statement of defendant No.1 for further proceedings starting from framing of issues.
17
33. The parties are at liberty to examine witnesses and also to further cross-examine witnesses. The learned trial judge shall expeditiously dispose of the matter, however, not later than outer limit of four months from the date of first date of hearing i.e. on 05.09.2019.
34. In the meanwhile, the parties shall maintain status quo in respect of the schedule property till disposal of the O.S.No.97/1996.
35. In no occasion be the parties either plaintiffs or defendants or their witnesses shall seek adjournment more than once.
Sd/-
JUDGE Sdu/VNR