Bangalore District Court
Sri.Raja Gopala Reddy vs Sri.B.K.Nagappa on 25 September, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH-74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE
Dated this the 25th day of September, 2019.
O.S. No.15728/2006
Plaintiff: Sri.Raja Gopala Reddy,
S/o.Late.Sri.Chikkaramaiah,
aged about 50 yrs,
R/at.Near Thulasi Theatre,
Marathahalli, Bengaluru-37.
(By Sri.V.Vishwanath - Adv.)
V/S
Defendants: 1. Sri.B.K.Nagappa,
S/o.Sri.Kaverappa, aged
about 60 yrs, R/at.Virata
Nagar, Bommanahalli,
Bengaluru-560063.
2. The Senior Sub-Registrar,
Bengaluru South, BDA
Complex, Sub-Registrar
Office, Koramangala,
Bengaluru.
3. The District Registrar,
2 O.S. No.15728/2006
Bengaluru Urban District,
Cauvery Bhavan,
Bengaluru.
4. State of Karnataka,
Revenue Department,
Multi storied Buildings,
Bengaluru. Rep.by its
Revenue Commissioner.
(By Sri.B.S.Gurudath - Adv. for deft.No.1)
(By Sri.Kiran Pradeep - IV Addl.Dist.Govt.Pleader
for defts.No.2 to 4)
Date of Institution of the suit 20.04.2006
Nature of the (Suit or pro-
note, suit for declaration
Injunction Suit
and possession, suit for
injunction, etc.)
Date of the commencement of
11.08.2016
recording of the Evidence.
Date on which the Judgment
25.09.2019
was pronounced.
Year/s Month/s Day/s
Total duration 13 05 05
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)
JUDGMENT
The plaintiff has filed this suit for permanent injunction against the defendant No.1 restraining him, 3 O.S. No.15728/2006 his representative, agents or any person claiming through the defendant No.1 from selling, mortgaging, leasing in any manner to the third party with the possession of the suit schedule property.
2. Brief facts of the plaintiff's case:
It is the case of the plaintiff that defendant No.1 is the absolute owner of the property bearing Sy.No.11 to the extent of 20-08 gunta, the total measurement of the said property is 18,000 square feet, situated at Bommanahalli Village; i.e., suit schedule property and all the revenue records stands in the name of defendant No.1, so the defendant No.1 is absolute owner, possession and enjoyment of the suit schedule property having good marketable title over the suit schedule property. Such being the fact, the plaintiff has entered into an agreement of sale with defendant No.1 for purchase of the suit schedule property for valuable consideration of Rs.18,00,000/-. Plaintiff has paid advance consideration of Rs.8,90,000/- and 4 O.S. No.15728/2006 Rs.9,50,000/- on various dates to the defendant No.1.
Same was acknowledged by the defendant No.1. The balance consideration amount of Rs.50,000/- shall be paid at the time of execution of sale deed in terms of agreement of sale. Further it is agreed in the agreement of sale that defendant has to execute sale deed in terms of agreement of sale when plaintiff called upon to do so. But, defendant No.1 has not come forward to execute the sale deed, though demanded.
The plaintiff is always ready and willing to pay the balance consideration amount and performed his part of contract. But, defendant No.1 went on postponing the execution of sale deed on the one or other grounds, though plaintiff called upon the defendant No.1 to execute the sale deed by receiving balance consideration amount in terms of agreement of sale deed dated 11.06.2003. Further it is case of the plaintiff that instead of executing the sale deed in terms of agreement of sale the defendant No.1 has 5 O.S. No.15728/2006 made attempt to sell the suit schedule property for higher prices. When plaintiff came to know about the illegal act of defendant No.1, has filed this suit for necessary relief of permanent injunction.
3. In pursuance of the suit summons, the defendant No.1 appeared through his counsel and filed written statement. The defendant No.2 to 4 initially placed exparte, thereafter they filed necessary application and got set aside the exparte order and appeared through counsel. But, defendant No.2 to 4 did not choose to file their written statement.
4. It is the case of the defendant No.1 that defendant No.1 is not the owner of the suit schedule property as he has transferred the suit schedule property and defendant No.1 has not executed agreement of sale, dated 11.6.2013, in respect of suit schedule property, he has not received any consideration amount from the plaintiff and documents produced by the plaintiff are created, 6 O.S. No.15728/2006 concocted and fabricated documents. Further defendant No.1 has denied the entire contents of plaint. Further he contended that he has transferred his property in the year 1996 itself. So question of execution of agreement of sale, in respect of suit schedule property, in favour of the plaintiff, for the said consideration amount does not arises. Further the defendant No.1 has contended in the written statement that this plaintiff had filed suit O.S. No.15941/2006 against the defendant No.1, for specific performance of contract, same was dismissed for default vide order dated 18.12.2011. But, plaintiff has not challenged the said dismissal order. Hence, the suit filed by the plaintiff is not maintainable and liable to be dismissed.
5. On pleading of both the parties my learned Predecessor has framed the following:
ISSUES 7 O.S. No.15728/2006
1. Does the plaintiff prove his lawful possession over the suit schedule property as on the date of suit?
2. Does the plaintiff prove the alleged interference?
3. To what decree or order?
6. In order to prove his case the plaintiff is examined as PW.1 and got marked Ex.P.1 to P.3. PW.1 was partly cross-examined by the defendant No.1. Further cross of PW.1 was taken as Nil as when suit was posted for further cross of PW.1 and payment of cost, at that time defendant No.1 and his counsel were absent. When suit was posted for argument on plaintiff side, plaintiff and his counsel remained absent. Hence, argument on plaintiff side is taken as heard and posted for argument on defendant side. Heard argument of the learned counsel for defendant No.1.
7. My answer to the above said issues are as follows:-
Issue No.1: In the Negative, 8 O.S. No.15728/2006 Issue No.2: In the Negative, Issue No.3: As per final order, for the following:-
R E AS O N S
8. Issue No.1: In order to prove his case the plaintiff is examined himself as PW.1 and got marked Ex.P.1 to P.3 and PW.1 cross-examined by defendant by putting only one question and posted for further cross of PW.1. Thereafter, cross of PW.1 has taken as no cross; but, defendant No.1 has filed IA for set aside the said order, same was allowed with cost of Rs.200/- .
9. When suit was posted for cross of PW.1 and payment of cost, the defendant and his counsel were absent; hence, cross of PW.1 was taken as Nil and posted for further evidence of plaintiff side if any, when suit was posted for further evidence of plaintiff side, at that time, the learned counsel for plaintiff submitted that the plaintiff has no further evidence. Hence, plaintiff side evidence was closed and posted for 9 O.S. No.15728/2006 defendant evidence. But, defendant did not choose to lead his evidence even though sufficient opportunity was provided.
10. It is the case of the plaintiff that defendant No.1 is the absolute owner and in possession of the suit schedule property and revenue records are stands in the name of defendant No.1, he has marketable title over the suit property. Such being the fact, the plaintiff has entered into an agreement of sale with defendant No.1 as defendant No.1 has agreed to sell the suit property for consideration amount of Rs.18,90,000/-, plaintiff has paid advance amount of Rs.8,90,000/-; thereafter, again the plaintiff has paid advance amount of Rs.9,50,000/-, it was agreed that remaining balance amount of consideration shall be paid at the time of execution of sale deed, said payment was duly acknowledged by the defendant No.1, it was agreed that sale of suit property shall be completed as and when purchaser called for the 10 O.S. No.15728/2006 defendant No.1 to execute sale deed. The defendant No.1 did not come forward to execute sale deed in terms of agreement of sale, when plaintiff called for and receive the balance sale consideration, on account of which there was panchayath held in the month of March 2006 and defendant No.1 was agreed before the panchayath to execute the sale deed within fifteen days; but, failed to execute the sale deed. The plaintiff was and is, ever ready and willing to perform his part of contract by paying balance consideration. The defendant No.1 instead of executing the sale deed in favour of plaintiff in terms of agreement of sale in respect of suit property, has made attempt to sell the suit property to third party for higher prices. Hence, the plaintiff has filed this suit. Ex.P.1 is the unregistered agreement of sale dated 11.06.2003 and Ex.P.2 is the RTC of Sy.No.11 and Ex.P.3 is the EC for the period from 1.4.2003 to 28.4.2009. Now, the question before court is as to whether suit filed by 11 O.S. No.15728/2006 plaintiff is maintainable under the law, if the answer is suit is not maintainable then the question is as to whether plaintiff is entitle for the relief sought in the plaint for restraining the defendant No.1 from alienating or creating third party interest over the suit property.
11. The learned counsel for plaintiff did not addressed his argument. But, the learned counsel for the defendant submitted his argument submitting that defendant No.1 has filed his Written Statement; but, did not lead his evidence. But, simply because the defendant did not led any evidence the suit cannot be decreed when suit itself is not maintainable. Plaintiff has to prove his case independently. Further the learned counsel for defendant No.1 has brought notice of this court on the provision of Section 41 (h) of the Specific Relief Act, which reads thus;
41 (h) when equally efficacious relief can certainly be obtained by any other usual 12 O.S. No.15728/2006 mode of proceeding except in case of breach of trust.
12. The case of the plaintiff is that the defendant No.1 has executed agreement of sale in respect of suit schedule property in favour of the plaintiff agreeing to sell the suit schedule property for consideration amount of Rs.18,90,000/- and plaintiff has paid advance amount of Rs.8,90,000/- and Rs.9,50,000/-. Further it is the case of the plaintiff that the defendant has to execute the regular sale deed in favour of the plaintiff by receiving balance consideration amount whenever the purchaser; i.e., plaintiff called upon to do so. But, defendant No.1 failed to execute the sale deed in terms of agreement of sale by receiving the balance consideration amount and defendant No.1 took the suit property for sale for higher prices. When plaintiff came to know about the act of defendant No.1, has filed this suit to restrain the defendant No.1 from alienating and creating any third party right over the suit property. It is a settled principle of law that when 13 O.S. No.15728/2006 efficacious relief is available to the plaintiff and the plaintiff did not choose to have such a relief by filing suit for specific performance of contract; but, filed mere injunction suit. Under such circumstances, mere injunction suit is not maintainable under the law. The plaintiff has to file suit for specific performance of contract. The suit for injunction is barred by the provisions of Section 41 (h) of Specific Relief Act, under the facts and circumstances of the case. Now the question for consideration would arise as to whether the plaintiff is entitle only for injunction order under Section 38 of the Specific Relief Act in view of Section 41 (h) of the Act. To consider this aspect it would be appropriate to have a notice and extract Section 38 and 41 (h) of the Specific Relief Act which reads thus:
38. Perpetual injunction when granted.-
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be 14 O.S. No.15728/2006 granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.15 O.S. No.15728/2006
Further it is relevant to extract the provisions of Section 41 of Specific Relief Act, which reads thus:
41. Injunction when refused.-An injunction cannot be granted-
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
16 O.S. No.15728/2006
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
13. On careful perusal of the above said provisions it is clear that the relief sought by the plaintiff in the plaint cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceedings. So, looking to the facts and circumstances of the case Section 38 and 41 (h) of Specific Relief Act should be read together, in which the plaintiff would have been if he had not asked for a relief of injunction. Because it refers to the relief being capable of obtaining by another usual mode of 17 O.S. No.15728/2006 proceedings able to produce the same result intended by the plaintiff. So looking to the facts and circumstances of the case the usual mode is to file specific performance of contract to enforce the agreement of sale in its term. Considering the oral and documentary evidence and facts of the case I am of the opinion that the suit filed by the plaintiff is not maintainable. In support of my opinion I relied on the decision of the Hon'ble Apex Court passed in case of Municipal Corporation of Delhi v/s Sri.Suresh Chandra Jaipuria and another. The lordships have held in the said decision at para No.10 which reads thus;
Further, section 41(h) of Specific Relief Act which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust was also relevant on this point. Thus the remedy under 18 O.S. No.15728/2006 Section 169 of the Delhi Municipal Corporation Act, 1957 was available to the plaintiff. This consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction.
Further I relied on decision passed by the Hon'ble High Court of Madhya Pradesh in case of M/s.Jawahar Theatre Pvt. Ltd. v/s Smt.Kasturi Bai and another decided on 27.7.1960. The lordships have held in the judgment at para No.8 which reads thus:
8. There is another aspect which persuades me to adopt this course.
Section 56(f) of the Specific Relief Act, 1877 lays down that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced.
However, Section 57 of the Specific Relief Act, which is as follows is an exception to Section 56 of the Specific Relief Act:
19 O.S. No.15728/2006
"Notwithstanding Section 56, Clause (f), where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement; Provided that the applicant has not failed to perform the contract so far as it is binding on him." Therefore, unless a plaintiff brings his claim within the ambit of Section 57 of the Specific Relief Act, the Court would ordinarily refuse to grant a mere negative injunction in cases where a plaintiff is in a position to claim a mandatory injunction or the specific performance of the contract. If the Court were to permit that, it might result in multiplicity of suits and also might amount to abuse of the process of the Court if the other side were prevented 20 O.S. No.15728/2006 from raising legal pleas, which would ordinarily be available to it.
It is true that where a party may not be able to claim a specific performance of the contract of lease, or where a party is not in a position to claim a mandatory injunction, such as cases, where it is a matter of personal skill or personal service, the Court might grant mere negative injunction. But in other cases the Court should be cautious about granting mere negative injunction in cases where a plaintiff, being able to claim positive injunction, or being able to claim specific performance, avoids to do the same and wants to reserve it for some later occasion. I do not mean to say that in no case should the Court grant such liberty to reserve for a later occasion. But the discretion has to be exercised judicially and if it results in depriving the other side of some of its legal pleas, the Court would not be inclined to exercise its discretion in favour of the plaintiff.21 O.S. No.15728/2006
Further I relied on the decision passed by the Hon'ble Punjab-Haryana High Court in case of Satish Bahadur v/s Hans Raj and others decided on 27.8.1980. In the said decision the lordships have held that;
the plaintiffs are entitled to claim the relief for specific performance of the contract. Since the plaintiffs are entitled to another equally efficacious relief, the present suit for permanent injunction cannot proceed, because an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings. In the present suit the Court is not concerned with the limitation of three years for filing the suit for specific performance of the contract.
14. The fact of the case on hand in the light of the principle of law laid down by the Hon'ble Supreme Court as well as Hon'ble High Court in the above 22 O.S. No.15728/2006 judgments and keeping in view of Section 38 r/w Section 41 (h) of Specific Relief Act, the relief of permanent injunction cannot be granted as it is hit by Section 41 (h) of the Act, which provides that when equally efficacious relief can be granted by another mode of proceeding, permanent injunction cannot be granted. Obviously, in the facts and circumstances of the case on hand, in the suit for specific performance of the contract under Section 19 of the Act, necessary relief of specific performance of contract can be obtained through such a suit and in this view of the matter, in the instant suit for bear perpetual injunction, simplicitor cannot be granted relief of permanent injunction, which was clearly barred by Section 41 (h) of the Specific Relief Act. Looking to the facts and circumstances of the case and relying on the decision referred above and reasoning assigned above, I am of the opinion that the suit filed by the plaintiff is to be dismissed. And it is also case of the plaintiff that 23 O.S. No.15728/2006 defendant has executed agreement of sale without possession. Hence, on this count also suit of the plaintiff failed. With this reason I answer this issue in the Negative.
15. Issue No.2: It is the case of the plaintiff that the defendant No.1 has executed agreement of sale agreeing to sell the suit schedule property to the plaintiff for sale consideration amount of Rs.18,90,000/- and plaintiff has paid advance amount of Rs.8,90,000/- and Rs.9,50,000/- and same has also been acknowledged by the defendant No.1. Further it is case of the plaintiff that the defendant No.1 failed to execute the sale deed in terms of agreement of sale. When plaintiff failed to prove his possession and suit of the plaintiff is not sustainable under the law and law laid down by the Hon'ble Apex Court as well as Hon'ble High Court and it is also clear from the plaint that the plaintiff is not in a possession of the suit schedule property. Admittedly suit schedule property 24 O.S. No.15728/2006 is in the possession of defendant No.1 as agreement of sale is without possession. Hence, the question of interference by the defendant does not arise. With this observation I answer this issue in the Negative.
16. Issue No.3: In view of the discussion made on issue Nos.1 & 2, I proceed to following:-
ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 25th day of September, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH-74) 25 O.S. No.15728/2006 SUIT SCHEDULE PROPERTY All that piece and parcel of property bearing Sy.No.11 to the extent of 20.08 guntas, out of which 18,000 square feets situated at Bommanahalli, Begur Hobli, Bengaluru South Taluk, Bengaluru, bounded on the:
East by: Private property; West by: B.P.L Factory;
North by: Narayanappas Property; and on South by: Ankuras Gopalappa's property.
ANNEXURE List of witness examined for the plaintiff's side:
P.W.1 - Sri.Rajagopal Reddy List of documents exhibited for the plaintiff's side:
Ex.P.1 - Unregistered Sale agreement
dated 11.06.2003
Ex.P.2 - RTC of Sy.No.11
Ex.P.3 - EC for the period from 1.4.2003
to 28.4.2009
List of witness examined for the defendants' side :
-NIL-26 O.S. No.15728/2006
List of document exhibited for the defendants' side:
-NIL-
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH-74) 27 O.S. No.15728/2006