Karnataka High Court
Azmathulla Khan vs Thankamma Mathews on 20 April, 1994
Equivalent citations: ILR1994KAR1665, 1996 A I H C 2647, (1994) 3 CIVLJ 3, (1995) 1 CIVILCOURTC 34, (1994) 3 CURCC 622
JUDGMENT Krishnan, J.
1. The appellant was the defendant before the 10th Addl. City Civil Judge, Bangalore in Original Suit No. 923 of 1980. That was a suit filed by the plaintiff for declaration that the agreement to sell entered into between her and the defendant dated 12-11-1974 stood cancelled and for recovery of possession of the suit property in respect of which the agreement to sell had been entered and for recovery of a sum of Rs. 1,870/- being the damages for use and occupation of the said property with a prayer for a further direction to enquire into the future mesne profits, under Order 20 Rule 12 CPC. The suit had been originally instituted before the Civil Judge, Civil Station, Bangalore and had been numbered as 29 of 1975 and it was pending as on the date of formation of the Court of City Civil Judge, Bangalore and thereafter came to be numbered as Original Suit No. 923 of 1980 and was ultimately disposed of by the 10th Addl. City Civil Judge. The learned Civil Judge granted the prayer for cancellation of the agreement to sell and directed the defendant to handover possession of the suit house and pay a sum of Rs. 215/- by way of past damages for use and occupation upto the date of occupation of the suit house and further directed the plaintiff to refund the sum of Rs. 18,000/- received by her as advance under the agreement with interest at 6 percent per annum, fn respect of direction of refund as also award of only Rs. 215/- as damages, plaintiff has preferred cross objections. The Appeal was allowed by another Division Bench of this Court by its Judgment dated 18-7-1990 and the suit came to be dismissed. The appellant-defendant was directed to pay or deposit the sum of Rs. 72,000/- the unpaid balance consideration with 15 per cent interest per annum from 25-11-1974 till payment or deposit in the Court below on or before 31st December, 1990 and the trial Court was directed to issue notice to plaintiff fixing the date for executing the sale deed if the deposit were to be made and the plaintiff was further directed to execute the sale deed after receiving the entire amount and on the failure of the plaintiff to execute the sale deed, the Court was directed to execute the same. Being aggrieved by the by this Judgment and decree of this Court, the plaintiff preferred Civil Appeal No. 6076 of 1990 before the Supreme Court of India and the Hon'ble Supreme Court set aside the judgment and decree of this Court and remitted the case to the file of this Court with a direction to restore the Appeal to the file and to hear and dispose of the Appeal on merits along with the cross objections. The Supreme Court also gave certain directions for depositing certain amount by the defendant and it is quite unnecessary to advert to those directions at this stage.
2. The case of the plaintiff in brief is as follows:
The plaintiff had agreed to sell and defendant had agreed to purchase the premises bearing No. 102, situate at Wheeler Road, Civil Station, Bangalore more fully described in the plaint schedule, for a sum of Rs. 90,000/- and had executed an agreement to sell on 12-11-1974. She had received a sum of Rs. 3,000/- only on the date of the said agreement. As per the terms of the agreement, the sale transaction had to be completed on or before 11-1-1975. As per the terms and conditions of the agreement, plaintiff had agreed to obtain a declaration from one Mohanambal who had not joined in the execution of the Sale Deed dated 29-6-1972 in favour of the plaintiff and if for any reason he was unable to obtain any such declaration from her, it had been agreed that she and her husband should furnish security indemnifying the possible loss and damages to the extent of Rs. 5,000/-. On 25-11-1974, the defendant paid a further sum of Rs. 15,000/- to the plaintiff and on that date the defendant was put in possession of the suit property. The agreement also provided that if the purchaser failed to perform his part of the contract, the advance amount paid by him would stand forfeited. There was exchange of correspondence including notices between the parties and plaintiff got issued a notice dated 10-1-1975 informing the defendant that the agreement entered into between them stood cancelled and that the advance amount of Rs. 18,000/- paid, stood forfeited and the defendant was also called upon to pay damages for use and occupation of the suit premises at Rs. 500/- per month. He was also called upon to deliver possession of the suit premises. It was further pleaded that the plaintiff was always willing and ready to perform her part of the contract and the breach of contract was on the part of the defendant. Therefore, plaintiff sought for declaration and possession and recovery of damages at Rs. 1,870/-.
3. That there was an Agreement to Sell in his favour, executed by the plaintiff on 12-11-1974 in respect of the suit house has been admitted by the defendant. He has pleaded that as per the agreement, the last date for performance of the contract was 11-1-1975 and the agreed sale price was Rs. 90.000/- and it had been agreed that a sum of Rs. 87,000/- should be paid before the Sub Registrar at the time of the registration. He has further pleaded that subsequent to the agreement, plaintiff was in dire need of money and he approached the defendant for a sum of Rs. 15,000/- and plaintiff agreed to receive the same as part of the sale consideration with the understanding that the defendant need pay only the balance amount of Rs. 72,000/- before the Sub Registrar at the time of the registration. He insisted the plaintiff to give possession of the suit property on account of the heavy advance and plaintiff readily agreed and accordingly on 25-11-1974 he was put in possession of the suit premises in part performance of the agreement. It has been stated that as per the terms of the agreement, plaintiff was expected to get the necessary declaration from Mohanambal before the finalisation of the sale transaction and was also expected to give or cause to be given necessary indemnity bond and they were the two essential pre-requisites before a sale deed could be executed. It has also been pleaded that at the time of incorporating the above said covenant relating to Mohanambal it was represented by defendant that the share of Mohanambal would come to 1/12 and therefore Rs. 5,000/-would be the approximate value of her share, taking the market value of the property at Rs. 90.000/- and accordingly the covenant relating to Rs. 5,000/- was made in the agreement. But, later the defendant came to know that Mohanambal actually had 1/8 share and further, the sum of Rs. 5,000/- noted in the agreement was a mathematical error. He has also pleaded that he was ready and willing to perform his part of the contract before 11-1-1975, but plaintiff did not show any concern for performing her part of the contract. Having regard to the fact that she had received heavy advance, thought of breaking the contract and not abide by the terms and conditions of the agreement. The plaintiff had failed to get the declaration from Mohanambal. She also failed to execute the indemnity bond as agreed. The plaintiff was guilty of suppressing the very important piece of information, that Mohanambal had got 1/8 share in the suit property and not 1/12 share. The exchange of notices has been admitted by him. The plaintiff got legal notice issued rescinding the contract and he (defendant) had replied the same. The allegation that he was not ready and willing to perform his part of the contract has been denied by the defendant. On the other hand he has pleaded that he was ever ready and willing to perform his part of the contract. He has also pleaded that he had made some improvements to the suit property to an extent of Rs. 20,000/-. He has also pleaded that there was no reason for him to avoid the same and on the other hand the plaintiff who had received art advance of Rs. 18,000/- had taken to this litigation. That plaintiff is entitled to forefeit the amount has also been disputed. It has also been pleaded that a sum of Rs. 18,000/-represents part of the sale consideration and therefore there was no scope for the plaintiff to cancel the said agreement. That plaintiff is entitled to the relief of declaration and possession and recovery of the amount has also been disputed. Therefore it has been pleaded that plaintiff's suit is liable to be dismissed.
4. On these pleadings the following issues were raised by the Civil Judge:
1. Whether the plaintiff proves that the defendant failed to perform his part of the contract in respect of the agreement of sale dated 12-11 -74 as contended by her?
or Whether the defendant proves that it was the plaintiff who failed to perform her part of the contract as contended by him in paras 4, 5 and 6 of his written statement?
2. Whether the plaintiff proves that she was entitled to repudiate the agreement of sale dated 12th November, 1974 and whether she actually repudiated the same?
3. Whether the plaintiff proves that she is entitled to a declaration that the agreement dated 12th November,1974stands cancelled?
4. Whether the plaintiff is entitled to recover possession of the suit schedule property from the defendant?
5. Whether the plaintiff is entitled to recover a sum of Rs. 1,870/- (1870/-) from the defendants towards damages for use and occupation of the schedule property from 25th November 1974 to the date of suit?
6. Whether the plaintiff is entitled to recover mesne profits in respect of the suit schedule property from the date of suit till the date of recovery of possession to be determined under Order 20 Rule 12 C.P.C.?
7. Whether there is no cause of action for the suit?
8. Whether the court fee paid is not sufficient?
9. To what reliefs is the plaintiff entitled?
5. The learned City Civil Judge held that the plaintiff was ready to perform her part of the contract while defendant was not and plaintiff was perfectly justified in terminating the contract by issuing a notice as per Ex.P5. Consequently it was held that plaintiff was entitled for cancellation of the said agreement and for recovery of possession of the suit premises and therefore issues 1 to 4 and 5 were answered in favour of the plaintiff. On issue No. 6 the learned City Civil Judge held that plaintiff was entitled to recover past damages at the rate of Rs. 65/- per month amounting in all Rs. 215/-. The learned City Civil Judge also held that plaintiff was not entitled to forefeit the advance of Rs. 18,000/- received by her and she was liable to refund the same with interest 6 percent to the defendant. Issue No. 8 had been answered by the predecessor of the learned Judge who rendered the judgment, on 21-9-1978 and though it was submitted on behalf of the defendant that, that finding required to be reviewed, the learned Judge held that the said order was not liable to be reviewed. Consequently the learned City Civil Judge decreed the suit as hereunder:
"In the result, in view of what is stated above, the suit is decreed preliminarily with six months time as follows:-
(a) The suit agreement dated 12-11-1974, a copy of which is marked Ex.P7 is cancelled. However plaintiff will refund Rs. 18,000/- received by her as advance under the said agreement to defendant with interest at 6% per annum.
(b) Defendant shall handover back possession of the suit house and pay a sum of Rs. 215/- by way of past damages for use and occupation upto the date of suit. He will be liable to pay future damages at the rate of Rs. 65/- P.M. to be ascertained separately by an application under O.20 R.12 CPC to be filed by the plaintiff after she obtains delivery of possession of the suit premises.
(c) In view of the partial success and failure of the parties, I direct them to bear their own costs in the suit."
It is being aggrieved by this judgment and decree of the learned City Civil Judge that the defendant has preferred the present appeal. The respondent being aggrieved by the finding of the learned trial Judge that time was not the essence of the contract and also that portion of the judgment and decree by which it was held that plaintiff was not entitled to forefeit the advance of Rs. 18.000/- received by her and that she was entitled to recover past mesne-profits of only Rs. 65/- per month, has preferred cross objections.
5. Before adverting to the Points that arise for Consideration in this Appeal and the contentions advanced on both sides for and against those Points it appears to us that it would be appropriate to refer to the genesis of the dispute that has arisen between the parties.
6. The plaintiff had agreed to sell the suit property in favour of the defendant as per the Agreement Ex.P7. The plaintiff purchased the suit property from one D. Ponnurangarn and others under a registered Sale Deed dated 29-5-1972 marked as Ex.P9. One Mohanambal-sister of D.Ponnurangarn one of the vendors under Ex.P9 had not joined in the execution of that Sale Deed. It has been recited in the agreernent-Ex.P7 that she had disclaimed any interest in the suit property and she was prepared to sign the necessary declaration to that effect. One of the conditions incorporated in the Agreement-Ex.P7 with reference to this aspect of the matter reads as hereunder.
"The first party undertakes to make available such declaration before the finalisation of the sale transaction and she also undertakes to give necessary indemnity bond either of herself or of her husband giving security of the respective parties for indemnifying possible damages or loss to the second party to the extent of Rs. 5,000/- (Rupees five thousand) and interest thereon from the date of the sale deed at twelve percent per annum in case the said Mohanambal or anybody through her puts the second party to such loss or damages or deprives him of the property to the extent of her share."
The defendant by his notice Ex.P1 after adverting to the above clause in the agreement informed the plaintiff that it was represented to him by the defendant that Mohanambal's share in the property was 1/12 and therefore the sum of Rs. 5,000/- was fixed in respect of the possible damages that may be caused to the defendant and in respect of the indemnity bond to be executed mention of figure of Rs. 5,000/- was a mathematical error and it ought to be Rs. 7,500/-. It has also been stated in the notice that the defendant had learnt that Mohanambal had got 1/8 share in the suit property and that fact had been suppressed. By the notice Ex.P4 issued on behalf of the defendant it was again asserted that the sum of Rs. 5,000/- was by no means a reasonable amount and it was just and reasonable to allow the defendant to withhold 1/8 portion of Rs. 90,000/- and the said transaction should be completed. By Ex.P5 the plaintiff informed the defendant that she was not agreeable to withhold any amount and as per the terms of the agreement she was prepared to furnish security in a sum of Rs. 5.000/- and as the time for execution of the sale deed had expired she had no other option but to forfeit the advance amount.
6. So far as the declaration of Mohanambal disclaiming any interest in the suit property, it was expected to be secured by the plaintiff as per the terms of the agreement and it has not been secured. The term agreed to between the parties in respect of any possible claim by Mohanambal and the damage that would be caused to the defendant, the parties had agreed that the plaintiff should give adequate security to indemnify the defendant to an extent of Rs. 5,000/- with interest thereon at 1,2 per cent per annum in case any loss or damage was caused to the defendant or he was deprived of the property to the extent of Mohanambal's share. The plaintiff made it very clear to the defendant by the notice Ex.P2 that she was unable to furnish the declaration of Mohanambal and therefore she was prepared to furnish security as per Clause 7 of the agreement and in the alternative she was even prepared for the defendant withholding the sum of Rs. 5,000/- towards Mohanambal's share and to get the sale deed registered. But the defendant informed the plaintiff as per Ex.P4 that he should be permitted to to withhold 1/8 portion of Rs. 90,000/- and complete the sale transaction. The plaintiff replied to this notice stating that she was not prepared for withholding of any amount and she was prepared to furnish security in a sum of Rs. 5,000/- as per the terms of the agreement and the defendant who was not possessed of required funds to complete the sale transaction was attempting to postpone the matter on one pretext or the other and she had no other alternative but to forefeit the advance amount.
7. Thus, it could be seen that the dispute between the parties centered round the aspect as to what should, be done when the plaintiff was prepared for the defendant withholding the sum of Rs. 5,000/- and to complete the sate transaction and the defendant was not prepared for the said course and went on asserting that he was entitled to withhold 1/8 portion of the sum of Rs. 90,000/- to which the plaintiff was not agreeable and the parties could not complete the transaction as agreed to.
8. The learned Advocate for the appellant contended that the learned Civil Judge was wholly in error in coming to the conclusion that his client (defendant) was not put in possession of the suit house in part performance of the agreement to sell and that the finding recorded that his client was not ready and willing to perform his part of the contract is again opposed to the evidence adduced in the case. It was urged that the agreement could not be pushed through on account of the unreasonable attitude on the part of the plaintiff in not agreeing for withholding 1/8 share in a sum of Rs. 90,000/- towards Mohanambal's share and that therefore there was no scope for the learned Civil Judge to have decreed the suit.
9. On the other hand it was contended by the learned Advocate for respondent-plaintiff that defendant was not put in possession of the suit house pursuant to the agreement to sell executed in his favour and having got into possession of the property by only parting with a paltry fraction of the entire sale consideration, the defendant was not ready and willing to perform his part of the contract and therefore went on putting lame excuses and therefore the learned Civil Judge was not right in holding that the defendant was not ready and willing to perform his part of the contract. It was also urged that on the material available on record, the learned Civil Judge was also right in holding that the defendant did not get possession of the suit property in part performance of the agreement to sell executed in his favour. It was further urged on behalf of the respondent that the Hon'ble Supreme Court has absolutely in clear terms held that the suit of the defendant for specific performance stood barred by limitation and further this Court in two successive decisions has held that if the party in whose favour the agreement to sell is executed has not sued for specific performance of the agreement to sell in his favour and the remedy for seeking the relief of specific performance is barred by limitation, then he cannot avail of the equitable remedy available under Section 53-A of the Transfer of Property Act to resist the suit for possession filed by the vendor and therefore without any further discussion, the suit for possession should be decreed.
10. In reply thereto, the learned Advocate for the appellant (defendant) contended that the finding of the Supreme Court on the aspect that the remedy of the defendant to get the relief of specific performance pursuant to the Agreement to sell in his favour is barred by limitation is a Decision rendered per incuriam and that runs contra to the terms of the Agreement and also the law in this regard and therefore that finding cannot be acted upon. It was urged that even the two Division Bench Decisions of this Court holding that the person who has entered into possession of property pursuant to the Agreement to sell in his favour cannot resist the suit for recovery of possession if his remedy in getting the relief of specific performance is barred by limitation is also opposed to canons as interpreted by various Courts and a second look is necessary in respect of the said Decisions. It was urged that these Decisions are also rendered per incuriam and are liable to be ignored and therefore there is no scope for this Court to decree the suit as sought for by the learned Advocate for respondent-plaintiff.
11. In addition to the several contentions advanced as above, it may also be noticed that a person who wants to avail of the rights under Section 53-A of the Transfer of Property Act must also establish that he has done some act in furtherance of the contract. The same flows from the clear language of the said Section.
12. On these contentions the Points that arise for Consideration in this Appeal are:
1. Whether the defendant-appellant entered into possession of the suit house in part performance of the agreement to sell in his favour?
2. Whether the defendant has performed or is willing to perform his part of the contract?
3. Whether the defendant has done some act in furtherance of the contract?
4. Whether the plaintiff was entitled to rescind the contract and whether therefore the agreement to sell stood cancelled?
5(a). Whether it is open to the appellant-defendant to challenge the finding of the Hon'ble Supreme Court in Civil Appeal No. 6076 of 1990 that the remedy of the defendant appellant to sue for specific performance of agreement to sell in his favour is barred by limitation?
5(b). If yes, whether the remedy of the defendant-appellant to sue for specific performance of the agreement to sell in his favour is not barred by limitation?
6. Whether the two Decisions of the Division Bench of this Court reported in I.LR.1988 Kar.631 and 1992 Kar.429 are Decisions rendered per incuriam and whether a second look is necessary in respect of this aspect of the matter.
7. If the finding on Point No. 4 is against the appellant-defendant and if the finding on point 5(a) is against the defendant-appellant, whether irrespective of any finding on any other aspect, the plaintiff is entitled to recover possession of the property?
8. Whether there is any scope to interfere with the judgment and decree of the learned Civil Judge?
12(a). Our findings on these points are:
Point No. 1:- In the affirmative (in favour of the appellant).
Points Nos.2 In the negative (against the appellant),
and 3:-
Point No. 4:- In the affirmative (in favour of the plaintiff-respondent)
Point No. 5(a) In negative.
& (b):-
Point No. 6:- In the negative (against the appellant).
Point No. 7:- In the affirmative (in favour of the plaintiff respondent.
Point No. 8:- In the negative, (against the appellant).
REASONS
13. POINT No. 1:
As, on the date of Agreement to sell Ex.P7, the defendant was not put in possession of the suit house. As per Clause VI of the Agreement, the plaintiff was under an obligation to keep the suit house under lock and key and to deliver to the defendant on the date of registration of the sale deed. In paragraph 4 of the plaint it was mentioned as hereunder:
"That defendant has paid herein a sum of Rs. 15,000/- to the plaintiff by way of further advance on 25-11-1974. The defendant herein was put in possession of the schedule property on the said date."
There is no mention in the plaint about the circumstances under which the defendant was put in possession of the suit house. The plaint is silent on the aspect as to whether the defendant was put in possession of the suit house pursuant to the agreement to sell or otherwise. The defendant has pleaded in paragraph 3 of his written statement that he insisted that he must be put in possession of the suit property because of the heavy advance he gave to the plaintiff and the plaintiff readily agreed to the same and accordingly on 25-11-1974, defendant was put in possession of the schedule premises in part performance of the contract.
14. The plaintiff's husband who has been examined as P.W.1 has stated in the course of his examination before Court that on 25-11-1974 defendant paid a sum of Rs. 15,000/- by way of further advance in about the time he wanted to marry and occupy the suit house for a temporary period of one week and so he paid the further advance mentioned above and took possession of the schedule house.
15. It is under these circumstances that the learned Advocate for the appellant contended that plaintiff parted with possession of the house in favour of the defendant only temporarily for a period of one week has no basis in the pleadings and this version has come for the first time at the time of recording of evidence of P.W.1 and no value whatsoever could be given to the said version. It was also urged that having regard to the conduct of the parties and the exchange of notices, the theory of the plaintiff that possession was given to. the defendant only for a temporary period of one week has to be rejected.
16. When the plaintiff has mentioned in the plaint about the sum of Rs. 15,000/- having been received by her as further advance on 25-11-1974 and the defendant having been put in possession of the suit house on the said date, there could hardly be any impediment in her way to have mentioned that the parting of possession was not in furtherance of the agreement to sell and it was only by way of temporary accommodation for a period of eight days. Even assuming for a moment that having regard to the prayer made by her in the suit, it was quite unnecessary for her to state about the circumstances under which she parted with possession of the suit property in favour of the defendant, when the defendant putforth the plea that he got possession of the suit house in furtherance of the agreement to sell in his favour. The plaintiff could have with the leave of this Court filed reply denying the said statement. The plaintiff has not done either of these things.
17. The defendant has asserted in his notice Ex.P1, that he was put in possession of the schedule premises in part performance of the contract and on 25-11 -1974 when he paid to the plaintiff the further sum of Rs. 15,000/-. The plaintiff has got this notice replied as per Ex.P2. Except for admitting the receipt of the sum of Rs. 15,000/- and Rs. 10,000/-, the plaintiff has not mentioned in Ex.P2 that she parted with possession of the suit house in favour of the defendant as he requested for temporary accommodation for a period of eight days. On the other hand, it has been mentioned as-
"Your client paid a further sum of Rs. 15,000/- by way of further advance on 25-11-1974 as he wanted possession of the premises immediately."
Therefore this statement impliedly connects the parting of further advance of Rs. 15,000/- by the defendant and parting of possession by the plaintiff. If the plaintiff had not parted with possession of the suit house in favour of the defendant, in furtherance of the agreement to sell executed by her in her favour and it was only by way of temporary accommodation for a period of eight days, her conduct would have been altogether different if after expiry of the period of eight days she was not put back in possession of the suit house. The plaintiff has not demanded possession, prior to the institution of the suit, putting forth the case that the defendant had entered into possession of the suit house only by way of temporary accommodation and that he had not kept up his word and that he should give back possession of the suit house. The learned City Civil Judge held that there was no reliable evidence on the side of the defendant to show that he was put in possession of the suit house in part performance of the agreement to sell in his favour and he was unable to hold that defendant was put in possession in pursuance of the suit agreement. Having given our anxious consideration to the conduct of the parties and also exchange of notices and in particular about the plaintiff having not denied this case of the defendant in the notice or in the course of the plaint, it appears that the probabilities are very much in favour of the defendant that he was put in possession of the suit house in furtherance of the agreement to sell in his favour and the learned Civil Judge was not right in recording a finding on this aspect of the matter against the defendant. Therefore, the first Point should be answered in favour of the appellant-defendant and is answered accordingly.
18. POINT NOS. 2 & 3:
Points 2 and 3 could be considered together. The plaintiff purchased the suit house from one Sri D.Ponnurangam and his brothers and sisters under the sale deed Ex.P9. It is undisputed that the said Ponnurangam had another sister by name Mohanambal. She had not joined in execution of the Sale Deed Ex.P9 in favour of the plaintiff. The averment in the Agreement Ex.P7 is that she had disclaimed any interest in the suit property and that she was even prepared to sign any declaration to that effect and plaintiff undertook to make available such declaration before finalization of the sale transaction and also undertook to give necessary indemnity bond either of herself or of her husband to indemnify the defendant in respect of possible damages or loss to him to the extent of Rs. 5,000/-and interest thereon at 12 per cent in case the said Mohanambal or anybody through her were to put him to any loss or damage or deprive him of the property to the extent of her share. The case of the defendant is that, it was represented to him that the said Mohanambal had only 1/12 share in the property and therefore the sum of Rs. 5,000/- fixed, there was an arithmetical mistake in showing that sum and it ought to have been a sum of Rs. 7,500/- and later he learnt that Mohanambal had 1/8 share and therefore he insisted on the plaintiff to allow him to withhold 1/8 of the sum of Rs. 90,000/- and complete the sale transaction, The plaintiff was not agreeable to such a course and was agreeable to only a sum of Rs. 5,000/- being deducted out of the sum of Rs. 90,000/- towards the share of Mohanambal.
19. The parties had agreed in the course of Ex.P7 for furnishing security to indemnify the defendant to the extent of Rs. 5,000/- and interest thereon in the case of Mohanambal or anybody claiming under her were to cause loss or damage to him. Even if one were to accept the case putforward by the defendant that it was represented to him that Mohanambal had 1/12 share in the suit house, the sum of Rs. 5,000/- agreed to between the parties does not bear any relationship to that share. There is no material on record to hold that there has been any mathematical mistake in fixing up the sum of Rs. 5,000/-.
20. The plaintiff has made it very clear during exchange of notices that she was unable to get the declaration of Mohanambat and was prepared to give security as agreed to or even agreed to the alternate course of defendant deducting a sum of Rs. 5,000/- from the total consideration amount. She was also categorical that she was not prepared to any amount in excess of Rs. 5,000/- being withheld by the defendant.
21. The defendant in the course of his examination-in-chief before the learned City Civil Judge has stated as hereunder with reference to this difference between him and the plaintiff:
"I would have agreed if plaintiff had made a proposal to allow to retain correct share of sale price towards Mohanambal's share or if plaintiff had proposed to deposit Mohanambal's share of sale price in a Bank in my name."
He has also admitted in the course of his cross examination that under the suit agreement he had to pay the full amount and he had no right to deduct any part of the amount towards the alleged Mohanambal's share. He has been further categorical, in that he has stated;
"I was prepared to purchase the suit property provided the plaintiff had agreed to my retaining 1/8 share of sale price towards Mohanambal's share and not otherwise."
22. This conduct on the part of the defendant of insisting on his withholding 1/8 share in the sum of Rs. 90,000/- in Mohanambal's share and not agreed to abide by the terms incorporated in the agreement or the further terms given by the plaintiff for withholding only a sum of Rs. 5,000/-, appears to have been the main reason for the transaction as per the agreement to sell not being put through.
23. There is no acceptable evidence on behalf of the defendant regarding the alleged represention pertaining to Mohanambal's share in the suit property by the plaintiff or the sum of Rs. 5,000/- being fixed in the Agreement pursuant to such misrepresentation on the part of the plaintiff. That Mohanambal had a certain share in the suit property at the time when her brothers and sisters sold the suit house in favour of the plaintiff and she had not joined in execution of the said sale deed is an aspect which was absolutely clear to the parties at the time when they entered into Agreement to sell. If the parties had also agreed about the course to be adopted in relation to Mohanambal's share, it was in our considered view not open to the defendant to putforward his own conditions for putting through the transaction. His categorical statement made in the course of his cross examination extracted at an earlier stage is to the effect that he was not prepared to purchase the suit property if the plaintiff had not agreed to retain 1/8 share of the sale price towards Mohanambal's share. With this assertion on his part as to how it could lie in his mouth that he was ready and willing to purchase the suit property as per the terms of the Agreement cannot at all be understood.
24. We may look at the conduct of the defendant yet from another angle. It may be noticed that the total consideration amount agreed to be paid for purchase of the suit house was Rs. 90,000/-. He had parted with a sum of Rs. 3,000/- at the time of the Agreement to sell and yet another sum of Rs. 15,000/- at the time when he got possession of the suit house. As per the terms of the Agreement he was yet to pay a sum of Rs. 72,000/- towards the sale consideration. Whether it be a sum of Rs. 5,000/- that could be deducted as agreed to by the plaintiff towards Mohanambal's share or even taking for granted for arguments sake, that defendant could deduct a sum of Rs. 12,000/- towards Mohanambal's share the balance amount that he had to pay was verymuch more than what he had parted with. He had obtained possession of the property and he has not so far taken any action for specific performance of the Agreement to sell. No material as such is forthcoming on record to show that he had the wherewithal to make up the balance of amount to complete the transaction. Even after the plaintiff categorically indicated that she was not prepared for deduction of any higher amount than Rs. 5,000/- towards Mohanambal's share, the defendant has not taken any further action to get the sale deed executed in his favour by taking such steps as are allowed under law by filing a suit for specific performance. This course of conduct on the part of the defendant makes one wonder whether he was in fact not ready and willing to perform his part of the contract and therefore he kept quiet as afterall he had undisputedly got possession of the house worth Rs. 90,000/- by parting with only a fraction of the amount viz., Rs. 18,000/-. Therefore looked at from any angle it is impossible to accept the contention advanced on behalf of the defendant that he was ready and willing to perform his part of the contract.
25. So far as the aspect whether the defendant has done some act in furtherance of the contract, except for pleading that he obtained possession in furtherance of the contract and subsequently he made improvements to the extent of Rs. 20,000/- to the suit property, the defendant has not set up any particular case that he has done any other act or that it was in furtherance of the contract Mere continuing in possession of the property cannot amount to doing some act within the meaning of Section 53-A of the Transfer of Property Act. Even assuming that we could accept the case putforward by the defendant that he has effected certain improvements and spent a sum of Rs. 20,000/- as to how it could be deemed to be an act in furtherance of the contract has not been explained on behalf of the appellant. In SARDAR GOVINDRAO MAHADIK AND ANOTHER vs. DEVI SAHAI AND OTHERS , while adverting to the conditions precedent for a person to claim the benefit under Section 53-A of the Transfer of Property Act, it has been pointed out at page 999 as follows:
"The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the act of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract."
There is nothing in the contract relating to possession of the properly being given except it be that it was expected to be given at the time of registration of the document. Therefore, the acts alleged to have been done by the defendant-appellant viz., carrying out repairs of the building in question, cannot in any way be referable to the pre-existing contract and there is absolutely no nexus between the contract and the alleged act of the defendant of effecting repairs to the suit house. Apart from the alleged repairs stated to have been carried out by the defendant, no other act has been done by him in furtherance of the contract. Therefore, it has to be held that the defendant-appellant has failed to establish that he has done some act in furtherance of the contract to claim the benefit under Section 53-A of the Transfer of Property Act. Therefore, it is clear that both, Points 2 and 3 must be answered against the defendant-appellant and accordingly they are so answered.
26. POINT No. 4:-
When our findings on Points 2 and 3 are against the appellant, it must necessarily be held that plaintiff was entitled to repudiate the contract and subsequently the Agreement to sell stood cancelled. Therefore, Point No. 4 is answered against the appellant and in favour of plaintiff-respondent.
27. POINT No. 5(a):-
The contention advanced on behalf of the appellant that the finding of the Supreme Court on the question of limitation is one rendered per incuriam is on the supposed assumption that the Decision of the Supreme Court relied upon by the plaintiff is on the Doctrine of Precedent. It must be noted that the Decision of the Supreme Court in Civil Appeal No. 6076 of 1990 wherein the finding is recorded on the question of limitation against the appellant-defendant herein, is rendered inter-parties and that Decision is not pressed into service either on the Doctrine of Precedents or by virtue of Article 141 of the Constitution. If that be so, there could hardly be any scope for the appellant to get over the finding of the Hon'ble Supreme Court of India on the question of limitation on the principle of Doctrine of per incuriam. When this aspect of the matter was specifically brought to the notice of the learned Advocate for the appellant he could not give any answer to justify his contention in this regard. Therefore, it has to be held that it is not open to the defendant-appellant to challenge in this Appeal the finding of the Supreme Court on the question of limitation.
28. POINT No. 5(b) When our finding on Point 5(a) is as above, there is no further question of considering whether the remedy of suing for specific performance is not barred by time. Even assuming for a moment that it is open to the appellant to challenge the said finding of the Supreme Court, it has to be held that there is no substance in this contention advanced on behalf of the appellant for more than one reason. It was urged on behalf of the appellant that furnishing the declaration of Mohanambal and also the necessary indemnity as per Clause 7 of the Agreement is a condition precedent for execution of a sale deed and the limitation would start only upon the fulfillment of the said condition and so long as those conditions are not fulfilled it should be held that the time has not commenced to run and therefore the appellant could file the suit for specific performance even as at present. It was also urged that though the contract mentions a period of performance of the contract that is not the starting point for running of time. It was urged that Article 54 of the Limitation Act consists of two parts, and the second part would be available for consideration only if the first part has no application. It was pointed out that under the first part, no doubt a period was fixed by Clause 2 of the Agreement as two months viz., that the last date for finalization of the transaction shall be 11-1-1975. It was urged that as per Clause 7, the plaintiff was to make available the declaration of Mohanambal and also the indemnity bond and these conditions occur in the later part of the Agreement and therefore they should be given due weight and it should be taken that, that is a condition precedent for finalization of the transaction by 11-1-1975 as contemplated by Clause 2 of the Agreement, The contention in this regard has to be mentioned only to be rejected for more than one reason. In the first instance it may be noticed that, that it is a condition precedent for the date fixed by Clause 2 of the agreement to become effective has not been pleaded by the appellant in the course of his written statement. Again, no evidence also has been adduced in that regard. The defendant right in the first sentence of his examination-in-chief has stated that the time fixed for suit agreement was after two months from the date of Agreement. He has not stated anything to the effect that the period fixed would be of no consequence if the condition contemplated in Clause 7 of the Agreement is not fulfilled. It may be noticed that as per Article 54 of the Limitation Act the period of three years for specific performance of contract runs from the date fixed for the performance or if no such date is fixed when the plaintiff has noticed the performance is refused. The date fixed as per Clause 2 of the Agreement for finalization of the transaction was 11-1-1975. Simply because certain obligations are cast on the plaintiff for performance of the contract, it cannot be said that the date fixed as per Clause 2 viz., 11-1-1975 cannot be counted for the purpose of finding out whether the remedy of the defendant for specific performance of the contract is barred or not. Therefore, even if we accept the contention of the learned Advocate for the appellant there is a date fixed for the performance, within the meaning of Clause (3) of Article 54 of the Limitation Act and three years having expired from that date, the remedy of suing for specific performance of the contract, is barred by limitation.
29. The learned Advocate for the appellant referred to a number of Decisions to hold that the limitation for suit for specific performance has not commenced to run because the plaintiff-respondent has not given the declaration of Mohanambal and also the necessary indemnity as per Clause 7 of the Agreement. Having gone through those Decisions, we find none of them is of any assistance to the appellant to canvas the aforesaid point. In RAMAZAN vs. SMT.HUSSAINI , what has been held is that, for purpose Of limitation and the date fixed for performance within the meaning of Col.No.3 of Article 54 of the Limitation Act:
"Mention in deed of particular date from calendar not necessary-Sufficient if basis of calculation which makes the date of performance certain is mentioned in the deed."
This is not the point with which we are presently concerned in this Appeal. In ROJASARA vs. JANI N. LALLUBHAI AIR 1986 SC 1912 relied upon by the learned Advocate for the appellant there is again nothing to support the proposition putforward by him. In that case, the respondents were required to have a conveyance executed immediately upon the conferral of occupancy right on the abolition and the permission granted by the revenue authorities to him to convert the suit land into village site and that permission had been obtained on 26th August 1958 and 10th September, 1959 and therefore, it was held that the suit filed on 6th September, 1960 was not barred by limitation. Thus, there is nothing in this Decision to buttress the argument canvassed by the learned Advocate for the appellant.
30. HUTCHEGOWDA vs. H.M.BASAVIAH AIR 1954 Mysore 29, relied upon by the learned Advocate for the appellant, again is for the proposition that for ascertaining the date fixed for performance within the meaning of Article 113 of the Limitation Act, 1908, it need not necessarily be a case of particular date being specifically mentioned in the agreement and if it could be ascertained by an event which specifically was certain of happening, it could be taken as the date fixed for performance. The Decision of the Lahore High Court in LAKHA SINGH vs. GHULAM MAHAMMAD AIR 1930 Lahore 1020 is only to the effect that a case, would come within the purview of second clause of third column of Article 113 of the Limitation Act, 1908, in which plaintiffs does not fall under the first portion. In MAHBOOB PASHA vs. SYED ZAHEERUDDIN what has been held is that, irrespective of the fact whether the time is the essence of contract or not, the period of limitation begins to run from the date fixed for performance of the agreement and if the date could be ascertained with reference to an event certain to happen, it would be a date fixed within the meaning of Article 113 of the Limitation Act 1908. We again do not see anything in this Decision which supports the contention of the learned Advocate for the appellant. IN K. KALLAIAH vs. NINGEGOWDA , it has been held that, even though the time stipulated in the contract, the starting point of limitation was to be reckoned from the date fixed for performance of the contract and not from the refusal of the defendant to perform his part of the contract. There is nothing in this Decision also to support the contention of the learned Advocate for the appellant.
31. It may be seen that if the obligation cast on the plaintiff to obtain the declaration from Mohanambal and also giving of indemnity cannot be construed as a condition precedent to make the date fixed for performance of the contract as per the agreement viz., 11-1-1975 effective, if we are to take that date as the date fixed for performance of the contract, then the appellant-defendant would be in a more disadvantageous position than the case where the period of limitation is counted from the time when he has notice that the performance is refused within the meaning of second clause in the third column of Article 54 of the Limitation Act, The remedy of the appellant for suing for specific performance would stand barred much earlier than the date as per the finding of the Hon'ble Supreme Court of India. In LAKSHMINARAYANA REDDIAR v. S.NAICKER AND ANOTHER , it has been held that despite a date having been fixed in the contract for purpose of cause of action to sue arose from the date of setting aside of the sale was based upon the finding that both the parties in that case had understood that a conveyance could be executed only after the execution sale was set aside by the Court and till then the party who had executed the agreement had no valid title to convey and the cause of action commenced from the date of setting aside of the same, though the date also had been fixed for performance of the contract. That was a case where the vendor had no title to the property as on the date of execution of the agreement and having regard to the facts and circumstances of that case and also the understanding between the parties it was held that the date fixed for performance of the agreement was of no consequence. No proposition of law as canvassed by the learned Advocate for the appellant has been laid down in this Decision.
32. Hence, even if we are to hold that it is open to the appellants to canvas before this Court in this Appeal that the remedy of suing for specific performance is not barred, it has to be held that he has failed to establish the same and on the other hand the finding is that, the remedy stands barred by limitation as more than three years have elapsed both from the date fixed for performance as also from the time when the appellant had notice that performance was refused. Therefore, the finding on Point No. 5(b) is against the appellant.
33. POINT No. 6:-
Section 53-A of the Transfer of Property Act was brought on the statute book by Transfer of Property Amendment Act, 1929. It reads as hereunder;
"Where any person contracts to transfer for consideration any imrnoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract,"
There is nothing mentioned in the Section notwithstanding that the remedy to sue for specific performance is barred by limitation, the bar contemplated under this Section shall effectively operate on the transferor. It is in this background that a Division Bench of this Court in KAREEM BAIG AND OTHERS vs. DR.MOHAMMED KHIZAR HUSSAIN AND OTHERS has held as follows:
"The doctrine of part performance is a doctrine of equity. Delay defeats equity. Therefore, when the agreement Ex.D1 has become unenforceable by reason of the Law of Limitation, the defence of part-performance which is founded on Ex.D1 cannot be permitted to be enforced as the agreement Ex.D1 has lost all its efficacy in as much as the right of defendant-4 to enforce it is lost by the law of limitation. The doctrine of part performance which is a doctrine of equity cannot be permitted to be invoked under these circumstances."
Following this Decision in GURURAO vs. SUBBA RAO , it has been held as hereunder:
"Therefore filing of suit by the plaintiff seeking possession of the suit schedule property from the defendant who was in possession of it pursuant to the Agreement of Sale and the possession was sought on the basis that it was an illegal possession, amounted to repudiating the Agreement of Sale. Therefore, the defendant was required to enforce the Agreement within a period of three years from the date of knowledge of the denial of the agreement. In our view, the plaint averment and relief sought in the suit did clearly and unequivocally amount to denial of the Agreement dated 16-12-1972. Therefore, the defendant was required to exercise his right under the Agreement by filing a suit for specific performance within three years from the date he was served with the suit summons. Section 53A incorporates doctrine of equity. Therefore, in order to invoke the protection under the doctrine of part-performance, the person invoking must possess the right to enforce the agreement of sale. If the right under the agreement is lost in Law of Limitation, even if it is lost during the pendency of the suit, it is open to the party to take advantage of the same and the Court to take note of it. The delay defeats equity. When the person in possession of the suit property loses his right to remain in possession, he cannot resist the suit of the true owner for possession of the same."
xxx xxx xxx "Therefore, on the expiry of the period of three years, the defendant lost all his right under the Agreement. Consequently, he could not resist the suit for possession filed by the plaintiff because the defendant ceased to have any right to enforce the agreement as that right had become barred by time."
These two Decisions have been attacked as Decisions per incuriam and that they are liable to be ignored and a second look is necessary on that aspect. It may be noticed that in the absence of a provision in Section 53-A of the Transfer of Property Act extracted above, that notwithstanding the fact that the remedy "for suing for specific performance is barred by limitation, the defence provided by this Section would be available to the person in whose favour agreement has been executed and who has entered into possession of the property in furtherance of the contract of sale. It cannot be said that these Decisions have been rendered contrary to the provisions of the said Section. It may be noticed that a specific provision has been made in relation to the contract having not been registered though required by law to be registered or where the transfer has not been completed in the manner prescribed, the transferee is entitled to the right under this Section to defend his possession. If it was intended that it should also be available though the remedy is barred by limitation, nothing would have been easier than to specifically mention that notwithstanding the fact that the remedy to sue for specific performance is barred by limitation, the defence under this Section is available to the transferee. When advisedly no such provision has been made, it cannot be said that the two Decisions of the Division Benches of this Court referred to above were rendered in ignorance of any provision of law or that therefore they are Decision per incuriam.
34. That the Doctrine of Part Performance incorporated in the Transfer of Property Act by this Section is a Doctrine of equity is a fairly well settled proposition and in fact has not been disputed by the learned Advocate for the appellant. If that be so, and if the transferee sleeps over his right to obtain relief of specific performance there would be every justification for application of Doctrine delay defeats equity in such a case. It may be noticed that in relation to appreciation of the law in this regard, even before insertion of Section 53-A of Transfer of Property Act, the Privy Council in the Decision in (MIAN) PIR BUZ vs. MOHOMED TAHAR AIR 1934 PC 235 @ 237 has held as hereunder:
"If the contract is still enforceable the defendant may found upon it to have the action stayed, and by suing for specific performance obtain a title which will protect him from ejectment. But if it is no longer enforceable, its part performance will not avail him to any effect."
Though this Decision was prior to the introduction of Section 53-A of the Transfer of Property Act for founding an action on the equitable Doctrine of Part Performance, the enforceability of the contract is a must has been recognised in the aforesaid observations. The learned Advocate for the appellant invited our attention to a number of Decisions in his attempt to persuade us to take a different view than the one taken in the two Division Bench Decisions of this Court referred to already. He invited our attention to a Decision of a learned Single Judge of the Andhra Pradesh High Court in PARNAM BALAJI AND ANOTHER vs. B.VENKATRAMAYYA AND ANOTHER .
Though it has been held that mere lapse of three years from the date of agreement does not automatically put an end to the contract on proposition with which we are not concerned, it has been specifically observed that the cause of action to enforce the contract arises only when the right under the document was repudiated. The further observation at paragraph 7 reads as hereunder:
"The cause of action to enforce it arises only when the right under Ex.B-7 is repudiated. Till then, they are entitled to continue in possession and S. 53-A of the Transfer of Property Act steps in and protects the appellants of their possession so long as the contract is enforceable, the possession of the vendees do not become unlawful."
We fail to see as to how this Decision more particularly the above said observations go to assist the appellant to contend that though agreement of sale has become unenforceable being barred by limitation, the appellant is entitled to the protection to retain possession under Section 53-A of the Transfer of Property Act. These observations are more in support of the stand taken in the two Division Bench Decisions of this Court referred to already. Again, the Division Bench Decision of the Patna High Court in RAJU ROY vs. KASINATH ROY relied upon by the learned Advocate for the appellant does not support his contention and on the other hand it negatives the contention advanced by him. At page 311 it has been observed as hereunder:
"Contract" contemplated by S. 53A is a contract which is enforceable at law. In other words, the contract in part performance of which possession has been taken is a contract in respect of which right to sue for specific performance of the same still subsisted. When the contract has become incapable of specific performance by efflux of time, possession taken thereafter cannot be said to be possession in part performance of the contract."
These observations are against the proposition sought to be propounded by the learned Advocate for the appellant.
35. It is no doubt true that in the Decision of the learned Single Judges of the Punjab and Harayana High Court, Hyderabad High Court and Bombay High Court reported respectively in Chaman Lal vs. Smt. Surinder Kumari, A.I.R. 1955 Hyderabad 101 Jahangir Begum v. Gullam Ali Ahmed and Maruti Gurappa and Anr. v. Krishna Balla and Anr. and the Division Bench Decisions of the Bombay and Assam High Court in Nanasaheb Gujaba Banker v. Appa Ganu Banker and Ors. and A.I.R 1949 Assam 8 Bholai Phukan v. Lakhi Kanta Ahom and Ors., it has been held that though the relief to obtain specific performance of the contract is barred by limitation, the vendee who has obtained possession of the property could resist the suit filed by the vendor by virtue of the Doctrine of Part Performance under Section 53-A of the Transfer of Property Act. After having gone through these Decisions, we are not, with all respect to the learned Judges of these Courts persuaded to accept their view point in this regard for more than one reason. It may be noticed that in none of these Decisions the impact of Doctrine delay defeats equity has been considered. Further, for fulfilment of the essential ingredient of this Section viz., that the transferee is willing to perform his part of the contract, cannot be satisfied if the right of transferee to get specific performance of the contract is extinguished by lapse of time prescribed under the Law of Limitation. Therefore, we are in respectful disagreement with the proposition propounded in these Decisions relied upon by the learned Advocate for the appellant. Therefore we are not persuaded by the argument of the learned Advocate for the appellant that the proposition enunciated in the two Decisions and require a second look or reconsideration. On the other hand, we respectfully agree with everyone of the reasons given in the two Decisions for the proposition that a transferee who has obtained possession of immoveable property in part performance of the contract cannot resist the suit for possession filed by the vendor if his right to obtain specific performance is barred by limitation and we reiterate the said principle. Hence, Point No. 6 is answered against the appellant.
36. POINT No. 7:-
When we have answered Points 2 to 4 against the appellant and in favour of respondent-plaintiff, it is clear that irrespective of the finding on the point of limitation, the plaintiff is entitled to succeed. In addition to that when issues 4, 5 and 6 are also answered against the appellant-defendant, it is clear that there could be absolutely no doubt that plaintiff-respondent is entitled to recover possession of the property. Even, if the findings on Points 2 to 4 were against the plaintiff-respondent and in favour of the appellant, in view of the findings on Points 5 and 6, there is absolutely no scope for the appellant-defendant to resist the suit for recovery of possession. Therefore, in any view of the matter there is absolutely no scope for the appellant-defendant to resist the suit for recovery of possession filed by the plaintiff. On the other hand, having regard to all the circumstances of the case, it should be held that the lower Court was justified in ordering the defendant-appellant to deliver possession of the property to the plaintiff. No argument could be advanced that despite the findings on the several Points as above, still there is scope to deny the relief of possession to the plaintiff. Hence, Point No. 7 is answered in favour of the plaintiff-respondent and against the appellant.
37. POINT No. 8:-
When our findings on several Points are as above, it is crystal clear that there is absolutely no scope to interfere with the judgment and decree of the learned Civil Judge and the Appeal is liable to be dismissed. Therefore, Point No. 8 is answered against the appellant.
38. Before parting with the case, we may also advert to the submission of the learned Advocate for the appellant that the matter could not end in a compromise before the Supreme Court as per the terms mentioned in paragraph 7 of its Judgment on account of some communication gap that the appellant is presently willing to abide by those terms or even pay more than what is mentioned. in the Judgment of the Supreme Court to retain possession or receive less to part with possession. Whatever be the reason for the parties not settling up the matter in the Supreme Court, when they have not reported any settlement before this Court, any offer made by the appellant at this stage would be absolutely of no consequence.
39. Nothing also could be urged on behalf of the plaintiff-respondent to interfere with that part of the judgment and decree of the trial Court which are against her. However, it was urged that the defendant-appellant had been directed by the learned City Civil Judge to return all the documents of title handed over to him at the time of Agreement to sell. No exception could be taken to this prayer made on behalf of the plaintiff-respondent. Therefore, we direct the appellant-defendant to return all the documents received by him in relation to the suit property at the time of agreement to sell and except to this limited extent the cross objections also shall stand dismissed.
40. In the result, the Appeal is dismissed. In the facts and circumstances of the case, we direct the parties to bear their own costs throughout.