Karnataka High Court
Sri. Arumugam vs Mrs. Regina on 5 January, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.F.A NO. 1558/2016 (SP)
BETWEEN
SRI ARUMUGAM,
S/O LATE MOONGALIAN,
AGED 51 YEARS,
R/AT NO. 36, II CROSS,
GAJENDRANAGAR,
OLD BYAPANAHALLI,
M.S. NAGAR POST,
BANGALORE - 560 033. ... APPELLANT
(BY SRI R. GOPALA KRISHNAN, ADVOCATE)
AND
1. MRS REGINA,
W/O LATE CHANDRAN,
AGED 63 YEARS,
2. SRI YESUDASS,
S/O MRS. REGINA,
AGED ABOUT 46 YEARS,
BOTH ARE R/AT NO.168,
BYRATHI VILLAGE,
BYRATHI MAIN ROAD,
DODDAGUBBI POST,
BANGALORE - 562 149. ... RESPONDENTS
(BY SRI P. NARAYANAPPA, ADVOCATE)
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THIS REGULAR FIRST APPEAL IS FILED U/S 96 OF
CPC., AGAINST THE ORDER DTD 30.06.2016 PASSED IN
OS.NO.25691/2011 ON THE FILE OF 57th ADDL. CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT
BENGALURU, ALLOWING IA FILED UNDER ORDER 7 RULE
11(d) R/W SEC.151 OF CPC., AND SEC.6(h)(3) OF
TRANSFER OF PROPERTY ACT. PRAYING TO REJECT THE
PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the respondent. Perused the judgment of the trial Court.
2. The trial Court has rejected the complaint of the plaintiff under Order VII Rule 11(d) r/w. Section 151 of CPC and also r/w. Section 6(h)(3) of Transfer of Property Act (for short, 'T.P. Act'). The plaintiff's suit is for Specific Performance of the contract.
3. The contention of the plaintiff is that, the suit property was allotted to the first defendant on 31.12.1985 and after confirmation of the same, the defendants have constructed a house in the schedule property with two shops. The plaintiff, who retired from Indian Army in 2008 was searching for the house and the plaintiff decided to 3 purchase the property from the defendant and by virtue of the same, he entered into sale agreement on 31.07.2008 for a sum of Rs.14,00,000/- and paid the said amount periodically. The plaintiff was also put in possession of the said property. As the sale deed was not executed, he issued notice and thereafter filed a suit. The defendant has taken-up the contention that there is violation of the condition specified in the agreement and the sale agreement is taken place within three years and hence, it is not valid in the eye of law. On perusal of the recital in the possession certificate, there is an issue in favour of the defendant reciting that the suit schedule property should not be alienated for a period of 15 years and the agreement was entered into within three years. Therefore, the trial Court has rejected the plaint on that ground. What is prohibited under the said document is alienation of the property, but not for entering into any agreement. The agreement will not create any right, title or interest over the property in favour of the party. Therefore, the plaint for specific performance should not have been rejected by the trial Court on that ground and 4 that point has to be considered by the Court at the time of dealing with the matter on merits.
4. Learned counsel appearing for the respondent also submitted that the trial Court can proceed with the matter and a direction may be issued to the trial Court to dispose of the matter as early as possible.
5. In view of the above said submissions made by the learned counsel for the respondent and the factual aspects which are available on record, I am of the opinion that the order impugned in the appeal deserves to be set aside.
6. Section 6(h) of T.P. Act also says that, no transfer can be made (1) in so far as it is opposed to the nature of interest affected thereby or (2) for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872 (9 of 1872) or to a person legally disqualified to be transferee. Here in this particular case, no transfer as such has been made. Therefore, Section 6(h) of the Transfer of Property Act is not applicable.
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7. Under the above circumstances, the following order is passed.
ORDER The appeal is allowed. The order dated 30.06.2016 passed by the trial Court in O.S. No.25691/2011 under Order VII Rule 11(d) r/w. Section 151 of CPC, is set aside. The suit in O.S. No.25691/2011 is restored on to the file of the trial Court with a direction that the trial Court has to proceed with the case in accordance with law and dispose of the suit on merits, as expeditiously as possible.
Office is directed to refund the Court fee to the appellant, if refund is permissible under law.
In view of the disposal of this appeal, the application-IA No.1/2016 filed for stay does not survive for consideration. Accordingly, the application-IA No.1/2016 stands dismissed.
Sd/-
JUDGE KGR*