Andhra HC (Pre-Telangana)
Jadav Bin P. Patel (Died) By Lrs. vs G. Srinivas Reddy (Died) By Lrs. And Anr. on 13 November, 2007
Equivalent citations: 2008(3)ALT388, AIR 2008 (NOC) 1397 (A. P.), 2008 (4) ABR (NOC) 578 (A. P.) 2008 (4) AKAR (NOC) 571 (A. P.), 2008 (4) AKAR (NOC) 571 (A. P.), 2008 (4) AKAR (NOC) 571 (A. P.) 2008 (4) ABR (NOC) 578 (A. P.), 2008 (4) ABR (NOC) 578 (A. P.)
JUDGMENT A. Gopal Reddy, J.
1. This appeal is preferred by defendants 1 to 3 against the judgment and decree, dated 25.10.1995, passed by the Additional Subordinate Judge, Rangareddy District, in O.S. No. 191 of 1987, decreeing the suit of the plaintiff for specific performance of agreement of sale, dated 23.4.1984, in respect of suit schedule properties.
2. Pending the appeal, the first appellant died, and therefore, the fourth appellant was brought on record as his legal representative as per order, dated 14.2.2002, passed in C.M.P. No. 2406 of 2002. Similarly, on the death of first respondent/plaintiff, respondents 3 to 8 were brought on record as his legal representatives, as per the orders in A.S.M.P. No. 23 of 2006, dated 24.1.2006. For the sake of convenience the parties shall be referred to as arrayed in O.S. No. 191 of 1997.
3. The facts, which are not in dispute, are briefly stated as under:
Plaintiff and Mohd. Khasim Ali defendant No. 4 entered into agreement of sale-Ex. A.1 on 23.4.1984 with defendants 1 to 3 through their General Power of Attorney Holder agreeing to purchase Acs. 11.39 guntas of land covered by Survey No. 36 known as Patel Farm situated at Satamrai Village of Shamshabad Mandal, Rajendra Nagar Taluq, Ranga Reddy District, for a total consideration of Rs. 18,00,000/- with structures thereon. On the date of the agreement, a sum of Rs. 1,00,000/- was paid as advance of sale consideration. As per the terms and conditions of the agreement of sale, the sale transaction shall take effect within six months from the date of release of the tentative layout from Bhagyanagar Urban Development Authority (BUDA). The agreement, inter-alia, provides permission for the purchasers to enter upon the property and divide the same into plots leaving necessary roads. The vendees shall secure layout permission from BUDA at their own expenses. The agreement further provides a condition for extension of time stipulated, subject to condition that the purchasers are liable to pay interest on the unpaid purchase money on and after two months beyond the stipulated time. The earnest money shall be adjusted towards the sale consideration of the last batch of sale of the plots. The purchasers are entitled to pay the sale consideration as and when sale of the plots have been taken place. It is also not in dispute that the properties covered by the agreement of sale are abutting the National Highway.
4. The plaintiff and defendant No. 4 also entered into a separate agreement with one S. Yadagiri and his sons and also the sons of his brother, who, in turn, also agreed to sell about 90 acres of land covered by Survey Nos. 643 to 658, which are located immediately at the rear side i.e., on the west of land covered by Survey No. 36 and Survey Nos. 648 to 653. Defendants 1 to 3 and Yadagiri secured a consolidated layout for the entire area covered by both the agreements of sale, dated 20.4.1984 and 23.4.1984.
BUDA, by its letter, dated 10.1.1985, Ex. A.9, called upon Section Yadagiri to remit an amount of Rs. 1,54,725/- towards layout permit fee and development charges through Demand Draft in favour of Vice-Chairman, HUDA, Secunderabad for processing of layout plan. On deposit of the said amount by the plaintiff and defendant No. 4, HUDA by its order dated 26.4.1985, Ex. A.10, restricted sanction of layout for the area covered by the suit schedule property and also about 60 acres out of 90 acres covered by the agreement of sale entered by the plaintiff and defendant No. 4 with S. Yadagiri and others, dated 20.4.1984. On such restriction, when the plaintiff was not proceeding to form roads, defendants 1 to 3 got issued a notice through their advocate under Exs. A.4 and A.12, dated 3.7.1985, to the plaintiff and defendant No. 4 calling upon them to commence the work as per the approved draft layout plan approved by the HUDA on 26.4.1985, failing to do so by the end of July, 1985 the agreement of sale entered into between them shall stand revoked and cancelled and that defendants 1 to 3 shall be entitled to forfeit the entire amount of Rs. 1,00,000/- paid by them as earnest money, towards damages, and that they are also entitled to claim Rs. 1,50,000/- as damages towards grape garden income, as by virtue of the said contract of sale they were legally prevented from soliciting any other bona fide purchasers and were deprived of usufructs of that grape garden.
5. On issuance of said notice, the plaintiff and defendant No. 4 sent a reply under Ex. A.5 on 24.7.1985 admitting that they came to know about the dispute in respect of the adjacent land belonging to late S. Yadagiri and others, and that in view of the title dispute pending in the High Court in C.C.C.A. No. 34 of 1980 in respect of the lands held by late S. Yadagiri and others, they were constrained not to proceed with development work until the title is cleared. The joint layout has resulted in much inconvenience to develop the portion of the land agreed to be purchased by defendants 1 to 3, as it is one of the conditions of the tentative layout that unless entire land is developed, the final layout will not be released. Therefore, the only alternative left was that defendants 1 to 3 have to take a separate layout for their lands. Hence, defendants 1 to 3 may be directed to take immediate and necessary steps to de-link the joint layout from other lands and to obtain a separate layout for Survey No. 36 and inform the same to the plaintiff and defendant No. 4 to perform their part of contractual obligation, as such, there is no question of insisting upon to revoke and cancel the agreement.
6. While the matter stood thus, defendant No. 4 filed O.S. No. 19 of 1986 on the file of the V Additional Judge, City Civil Court, for refund of the advance money and also for damages with interest accrued thereon, against defendants 1 to 3 impleading the plaintiff as fourth defendant. In the said suit, the plaintiff was served with summons on 21.1.1986. After service of summons, the plaintiff filed O.S. No. 171 of 1986, which was renumbered as O.S. No. 21 of 1993 on the file of the Munsiff Magistrate, West and South, Ranga Reddy District, for mandatory injunction directing defendants 1 to 3 to obtain a separate layout for the schedule land covered by Survey No. 36. Defendants 1 to 3 filed O.S. No. 679 of 1986 on the file of the V Additional Judge, City Civil Court, Hyderabad, for recovery of damages from the plaintiff and defendant No. 4.
7. When the said suits were pending, A the plaintiff filed O.S. No. 191 of 1986 on y.4.1987 for specific performance of Agreement of sale as referred to above. Pending the suit, defendant No. 4 died on 19.4.1987 and therefore, I.A. No. 746 of 1987 was filed to bring his legal representative on record and the same was ordered on 1.12.1988. Nearly after seven years after the death of defendant No. 4, the plaintiff filed I.A. No. 792 of 1994 to add Para 10-A in the plaint in O.S. No. 191 of 1986 alleging that defendant No. 4 colluded with defendants 1 to 3 to defeat and undermine his rights. The said I.A. was allowed on 2.9.1994. The main contention of the plaintiff in the suit filed for specific performance as per the averments made in the plaint is that the BUDA has restricted sanction of the layout for the area covered by the suit agreement of sale and also about 60 acres out of 90 acres covered by the agreement of sale, dated 20.4.1984. Even though certain condition is laid for laying roads, for the release of final layout, the work relating to formation of roads could not be taken up since the sanction was given only to a part of the layout submitted by the vendors i.e., defendants 1 to 3 and S. Yadagiri. The plaintiff and other purchasers have also approached the vendors to secure separate layout in respect of the land covered by the agreement of sale, dated 23.4.1984, but the vendors i.e., defendants 1 to 3 did not cooperate for some reason or the other. The plaintiff could not proceed with the laying of road in the land covered by the agreement of sale, dated 23.4.1984, due to the pendency of title dispute in C.C.C.A. No. 34 of 1980 regarding the land covered by the said agreement of sale. Defendants 1 to 3 instead of cooperating with the plaintiff in securing a separate layout, so as to enable the parties to go ahead with the sale transaction, took a prejudicial attitude in collusion with S. Yadagiri and others. Ultimately, defendants 1 to 3 filed O.S. No. 679 of 1986 against the plaintiff and defendant No. 4 to recover heavy damager.
8. Defendant No. 4 also filed O.S. No. 19 of 1986 on the file of the V Additional Judge for refund of half of the earnest money and also for damages with a view to create hurdles and complications in the claim of the plaintiff for specific performance. Therefore, the plaintiff was compelled to file O.S. No. 171 of 1986, which was renumbered as O.S. No. 21 of 1993, for mandatory injunction and to obtain a separate layout to the suit schedule property, which shows the plaintiffs willingness to perform his part of contract. After the plaint was amended by adding Para 10-A, the main contention was that defendant No. 4 colluded with defendant Nos. 1 to 3 to defeat and undermine the rights of the plaintiff. As per the agreement of sale, the transaction shall be completed within six months from the release of tentative layout from the BUDA. Since the suit land is covered by the agreement of sale, dated 23.4.1984, it is the responsibility of the vendees to obtain permission for separate layout sanctioning the division of the land into residential plots with their own expenses after obtaining layout sanction from HUDA and the sale has to be completed within six months from the release of the tentative layout.
9. The defendant while admitting the agreement, pleaded that the plaintiff and "defendant No. 4 applied for sanction of layout plan at their own expenses for developing the entire land as one, and if the sanction is not granted for the entire land of Acs. 101.39 guntas covered by the suit agreement in which tentative layout for the suit land covered by agreement of sale dated 23.4.1984 was granted along with 60 acres of land purchased by the plaintiff and defendant No. 4 from S. Yadagiri by the HUDA on 26.4.1985, it is for the plaintiff and defendant No. 4, who have to complete the sale transaction within six months from the said date, but they failed to perform their part of the contract. Further, defendant No. 4, who is an agreement of sale holder along with the plaintiff, filed O.S. No. 19 of 1986 for refund of the earnest money and also for damages. Therefore, the plaintiff cannot enforce the contract when one of the agreement holders rescind from the said contract and elected to file suit seeking refund of the amount.
10. The plaintiff instituted O.S. No. 171 of 1986, which was renumbered as O.S. No. 21 of 1993 seeking mandatory injunction against defendants 1 to 3 to obtain approval for separate layout, which shows that they are not ready and willing to perform their part of contract in spite of the tentative layout was sanctioned as intimated by HUDA under Ex. A. 10. Defendants 1 to 3 are nothing to do with the dispute in C.C.C.A. No. 34 of 1980 since the suit land is not subject-matter of the said appeal. Since the plaintiff and defendant No. 4 are joint purchasers and are responsible for obtaining layout, which was in fact sanctioned by the HUDA, they cannot insist for applying separate layout once again by defendants 1 to 3. As the plaintiff and defendant No. 4 were not ready to proceed with the sale transaction, defendants 1 to 3 were constrained to file O.S. No. 679 of 1986 seeking recovery of damages. Therefore, the agreement cannot be specifically enforced, and prayed for dismissal of the suit.
11. After the amendment is made to the plaint, defendants 1 to 3 filed an additional written statement denying their collusion with defendant No. 4 to defeat and undermine the rights of the plaintiff. Defendant No. 4 filed suit for refund of earnest money paid by him, since the plaintiff and defendant No. 4 failed to lay roads after the HUDA intimated sanction of tentative layout. The plaintiff and defendant No. 4 could not agree for common action and on the death of defendant No. 4, his legal representative, who came on record as defendant No. 5 in O.S. No. 19 of 1986 withdrew the suit as the matter was settled out of the Court. Therefore, the plaintiff cannot plead any collusion by defendant No. 4 with defendants 1 to 3.
12. On filing O.S. No. 171 of 1986, which was renumbered as O.S. No. 21 of 1993, for mandatory injunction, the same was withdrawn from the file of Munsiff Magistrate, West and South, Ranga Reddy District and made over to the Court of Additional Subordinate Judge, Ranga Reddy District, to be tried along with O.S. No. 191 of 1987. On such transfer, the following issues were settled for trial in O.S. No. 21 of 1993:
1. Whether the suit is within the jurisdiction of this Court and framed properly?
2. Whether the defendants 1 to 3 are liable under the suit agreement of sale to obtain a separate layout for the suit land from the Urban Development Authority concerned?
3. Whether the combined layout sanctioned for the suit land and the land in Survey Nos. 648 to 658 of the suit village disentitles the plaintiff to relief claimed in the suit?
4. What is the effect of the suit filed by the 4th defendant in the Court of the Additional Judge, City Civil Court, Hyderabad for refund of purchaser money on this suit.
5. Whether the plaintiff is entitled to relief of mandatory injunction claimed?
6. To what relief?
The following issues were settled for trial in O.S. No. 191 of 1987:
1. Whether the plaintiff is entitled for specific performance of agreement dated 23.4.1984?
2. Whether D1 to D3 colluded with defendant No. 4 along with legal heirs of late S. Yadagiri to defeat the rights of the plaintiff?
3. Whether the suit agreement is enforceable in view of O.S. No. 19 of 1986 on the file of the V Additional Judge, City Civil Court, Hyderabad?
4. Whether the suit is maintainable in view of O.S. No. 171 of 1986 on the file of M.M. Court, West and South, Ranga Reddy District?
5. To what relief?
13. In order to substantiate the claim of the plaintiff, the plaintiff himself was examined as P.W.I and got marked Exs. A.1 to A.27 and Ex. A.1(a). On behalf of defendants 1 to 3, one Ramesh Bai, General Power of Attorney Holder of defendants 1 to 3 was examined as D.W. I and Exs. B.1 and B.2 were marked.
The Court below, on consideration of/the entire material available on record, decreed the suit of the plaintiff in O.S. No. 191 of 1987 filed for specific performance of agreement of sale with a direction to the plaintiff to deposit Rs. 17,50,000/- after 90 days, if no appeal is filed and no stay is received, but within 180 days from the date of that order. In view of decreeing of the suit in O.S. No. 191 of 1987, no relief was granted in O.S. No. 21 of 1993 and the same was dismissed without costs. Aggrieved by the decreeing of O.S. No. 191 of 1987, defendants 1 to 3 preferred this appeal.
14. Sri K. Pratap Reddy, learned Senior Counsel appearing for the appellants, after drawing our attention to the plaint averments at Para 2, contends that the admitted pleading of the plaintiff itself disentitle him for the relief of specific performance of agreement of sale. Once the plaintiff admitted that the tentative layout was approved by the HUDA, he has to complete the sale transaction within six months from the date of such tentative approval. He also contended that as per clause 3 of the agreement of sale, it is the vendees' obligation to obtain layout. Since the plaintiff and defendant No. 4 failed to complete the transaction as per the terms and conditions of the agreement of sale, defendants 1 to 3 got issued legal notice under Exs. A.4 and A. 12 on 3.7.1985 calling upon them to complete the sale transaction. The reply sent by the plaintiff and defendant No. 4 under Exs. A.5 and A.13 by setting up a defence that a separate layout has to be obtained, itself disentitle the plaintiff for specific performance. He further contended that when there is no collusion as such pleaded between defendant No. 4 and defendants 1 to 3, when defendant No. 4 was alive and after the death of defendant No. 4 in the year 1987, the amendment was sought for in the year 1994 pleading collusion i.e., nearly seven years after the institution of the suit, which itself goes to show that the plaintiff wants to wriggle out of the consequences in view of the suit filed by defendant No. 4 for refund of the amount paid by him and also for damages. He further contended that the inordinate delay in enforcing the agreement after the issuance of Ex. A.4, dated 3.7.1985 i.e., institution of suit on 15.4.1987. Just five days before the expiry of three years, itself disentitles the plaintiff for specific performance of agreement of sale. Once the layout is perfectly in conformity to the desire of the vendees asking for fresh layout is against the terms and conditions of the agreement, and filing of the suit for mandatory injunction for such purpose clearly goes to show that the plaintiff was dillydallying to enforce the said agreement. He further contends that one of the purchasers filed O.S. No. 19 of 1986 for refund of half of the earnest money. If one purchaser elects to refund of money, when it is a joint contract, the other purchaser i.e., the plaintiff is not entitled to specific performance against the wish of other joint purchaser. In this connection, he placed reliance upon a Division Bench judgment of Calcutta High Court reported in Safiur Rahman v. Maharamunnessa Bibi I.L.R. 24 Cal. 832.;
15. He lastly contended that when the suit summons in O.S. No. 19 of 1986 were served on the plaintiff, who was arrayed as defendant No. 4 in the said suit, there is no whisper about the collusion in the plaint initially filed till the death of the plaintiff. Non-compliance of terms of the agreement by the plaintiff and defendant No. 4 for applying layout as undertaken by them, nonpayment of balance of consideration in spite of issuance of notice, and since the joint purchaser waived his right under the agreement by filing the suit, and setting up non-existence ground by the plaintiff and making false allegation of collusion of defendant No. 4 with defendants 1 to 3, which is negatived, itself disentitle him for specific performance. The learned Counsel also relied upon a judgment of the Supreme Court reported in K.S. Vidyanadam v. Vairavan , to substantiate his submissions.
16. On the contrary, Sri M.V.S. Suresh Kumar, learned Counsel appearing for the first respondent plaintiff refuted the above averments and contended that once the issues framed in O.S. No. 21 of 1993 have been answered in favour of the plaintiff, having not filed any appeal against the said finding which has become final, the appeal preferred by defendants 1 to 3 against decreeing of the specific performance is liable to be dismissed in limine without any further probe into the matter. He also contended that when HUDA approved layout and the notice sent by the HUDA demanding entire amount was received by the defendants and 5. Yadagiri under Ex. A.3 and the amount has been deposited with HUDA, which itself shows that the plaintiff was always ready and willing to perform his part of contract. When HUDA addressed a letter under Ex. A.10 on 26.4.1985 to S. Yadagiri imposing certain conditions, plaintiff demanded for separate layout for the suit schedule property, until the plaintiff complies the conditions i.e., laying of roads etc., the plaintiff cannot sell the plots to third party for enabling them to deposit the sale proceeds with defendants 1 to 3. When the defendants 1 to 3 unilaterally cancelled the agreement with certain conditions, the same was suitably replied. In the absence of any evidence to show that the plaintiff instructed for a joint layout to be obtained by defendants 1 to 3 with S. Yadagiri, and the same was applied without the knowledge of the plaintiff and defendant No. 4, the plaintiff is justified in calling defendants 1 to 3 to obtain a separate layout. When the plaintiff was impleaded as defendant No. 4 in O.S. No. 679 of 1986, he has pleaded collusion between defendant No. 4 and defendants 1 to 3 in filing O.S. No. 19 of 1986. Therefore, if the amendment is sought at belated stage by inserting Para 10A the same could not come in the way in granting specific performance. He lastly contended that principle of res judicata is applicable as the finding recorded on the issues framed in O.S. No. 21 of 1993 has become final, the appellants/defendants cannot agitate the same in the present appeal.
17. In reply, Sri K. Pratap Reddy, learned Senior Counsel appearing for the appellants contended that once the suit of the plaintiff in O.S. No. 21 of 1993 has been dismissed and no relief as such has been granted, it is ridiculous to contend that defendants 1 to 3 have not preferred any appeal against the dismissal of said suit, since appeal lies only against a decree under Section 96 C.P.C. Once no decree has been passed against defendants 1 to 3, it is not open for the plaintiff to contend that the findings recorded thereon operate as res judicata.
18. In the light of the above submissions the points that arise for consideration in this appeal are:
1. Whether the plaintiff and defendant No. 4 are ready and willing to perform their part of contract to enforce the specific performance of agreement of sale?
2. When defendant No. 4, joint contractee, rescind from the contract and elected to file a suit for refund of the advance amount, the other contractee, namely, the plaintiff is entitled to suit for specific performance to the whole agreement or part of the agreement against the wish of the other purchaser.
3. Whether the findings recorded in O.S. No. 21 of 1993 will operate res judicata in the absence of any appeal preferred challenging the findings?
Point No. 1:
Before answering to Point No. 1, it is necessary for us to notice the terms and conditions of the agreement of sale, Ex. A.1. The relevant clauses in Ex. A.1 read as under:
1. The total consideration being Rs. 18 lakhs, the Vendees have paid a sum of Rs. 1,00,000/- (Rupees one lakh only) to the Vendor as the earnest money. The balance sum of Rs. 17 lakhs shall be paid within 6 months of release of tentative layout from HUDA.
2. The sale shall take effect within 6 months from the release of tentative layout from B.U.D.A (Bhagyanagar Urban Development Authority).
3. The actual physical possession of the property shall remain with the Vendors only. However, the Vendors hereby give permission to the Vendees to go over to the property and divide the property into different plots. The expenses for dividing plots and leaving roads shall also be borne by the Vendees. The Vendees are entitled at their own expenses to obtain the layout permission from Competent Authority. The Vendees are also hereby permitted to use the Telephone however they shall be liable to pay Telephone bills.
4....
5. The above stipulated time for sale to take effect may be extended by the Vendor. But unless the stipulated time is extended in writing by the Vendors, the Vendees shall be liable to pay Bank interest (the interest at which bank lends to its customers) to the Vendors on the unpaid purchase money after two months of stipulated time.
6....
7. The Vendors are owners of 11 acres 39 guntas falling in S. No. 36. However the Vendors have fenced the property giving set back from the Road. The Vendees shall be entitled to obtain compensation for the unfenced land from the concerned Government Authorities.
8. As the Vendees are in the business of selling plots, the Vendees shall be liable to pay the sale consideration of each plot proportionately on the same day to the Vendors when the Vendors effect sale of that particular plot.
19. In Paragraph No. 2 of the plaint averments, it is clearly admitted by the plaintiff that defendants 1 to 3 herein, by virtue of the understanding between the parties and one S. Yadagiri and his sons and also the sons of his brother who, in turn, also agreed to sell about 90 acres of land to the plaintiff herein and defendant No.4, secured a consolidated layout for the entire area covered by both the agreements of sale, dated 23.4.1984 and 20.4.1984. Defendants 1 to 3 also may be under the impression that the said land of 90 acres was also covered by and included as residential zone in the Master Plan and as such, they might have thought that they can secure permission for the sanction of a combined layout. But the BUDA has restricted the sanction of the layout for the area covered by the suit agreement of sale and also about 60 acres out of 90 acres covered by the agreement of sale, dated 20.4.1984. Even though a condition is laid for laying the roads, for the release of the layout finally, the work relating to the formation of roads could not be taken up since the sanction given is only to a part of the-layout submitted by the Vendors.
20. The plaintiff, who examined himself as P.W. 1 admitted that defendant No. 4 is his joint agreement holder and that he is no more. Defendant No. 5 is the legal representative of defendant No. 4. The agreement was obtained in his name and in the name of defendant No. 4 and the advance amount was paid by both of them. Within 8 months of obtaining a tentative layout from BUDA, the balance of sale consideration is to be paid. He purchased about 90 acres of land in Survey Nos. 643 to 658, which is the rear of the land covered by the agreement of sale. The owners have to apply for layout. On 13.2.1985, they have paid layout fees as demanded by the owners. Ex. A.3 is the certified copy of the receipt, which shows that they have paid layout fees. He was informed by way of legal notice in the second week of June, 1985 regarding release of layout by the legal heirs of late Yadagiri and others. But the tentative layout was not handed over to him. A single and joint layout was prepared for this suit land and other adjoining lands. The said layout was released approximately for 75 acres. He does not know the reason as to why the said layout was released in the name of S. Yadagiri and others. As per the directions of the High Court a layout copy was supplied to him in 1988. He did not divide the land into plots and lay the roads, as by that time he came to know that civil appeal in C.C.C.A. No. 34 of 1980 was pending in the High Court. He approached Ramesh K. Bhai, General Power of Attorney Holder of defendants 1 to 3 number of times to de-link the layout of Survey No. 36 from other lands. He has to apply for separate layout for the said land before HUDA. Ex.A.4 is the Xerox copy of the legal notice, dated 3.7.1985, issued to him and defendant No. 4, for which he has sent a reply notice on 24.7.1985. Ex. A.9 is the certified copy of the letter dated 10.1.1985 from HUDA to S. Yadagiri and Ex. A.10 is the certified copy of the letter, dated 26.4.1985 addressed to S. Yadagiri by HUDA showing him as owner of the land including Survey No. 36 of Satamrai Village. Ex. A.14 is the legal notice issued on behalf of the vendors to him and defendant No. 4. He did not receive the copy of Ex. A.14, but he took it when he happened to meet the General Power of Attorney Holder of the vendors. By that time, Khasim Ali (defendant No. 4) filed suit against the vendors. He filed I.A. No. 486 of 1986 in I.A. No. 7 of 1986 in O.S. No. 19 of 1986 to implead him as a party to the suit. The vendors did not appear in C.M.A. No. 117 of 1987 filed by Khasim Ali and it was dismissed as withdrawn since it has become infructuous as O.S. No. 19 of 1986 was withdrawn by the legal heirs of Khasim Ali. Defendants 1 to 3 filed O.S. No. 679 of 1986 on 16.6.1986 for damages of Rs. 1,50,000/- against him and Khasim Ali, who died on 19.4.1987.
21. In the cross-examination, P.W.I 'admitted that as per Clause (3) of the agreement, they undertook to obtain sanction of layout at their expenses. He also admitted that they have entered into agreement for the purchase of lands from Yadagiri. By legal notice dated 3.7.1985 vendors informed him about the release of tentative layout, but the layout was not supplied to him. He does not know the conditions stipulated in the said layout. He also admitted that they have agreed for Clause 3 of the agreement. It is mentioned in Ex. A.1 that within 6'months from the date of release of the tentative layout himself and defendant No. 4 has to pay the balance sale consideration. He denied the suggestion that they have not come forward for obtaining a separate layout for the suit land. For a question, he admitted that at the request of the owners, he agreed for the submission of the layout. To another question, he answered that they were not knowing whether a common layout was being submitted or not and they have not raised any objection. He also admitted that under Ex.A.5, reply he submitted the existence of-joint layout of Yadagiri's land and the lands of defendants 1 to 3 and that in view of the litigation pending in the High Court, he requested for de-linking the lands of defendants 1 to 3 from the lands of Yadagiri and for separate layout. He also admitted that as per the terms and conditions of the agreement, Ex. A.1, they are liable to prepare the layout and obtain the sanction. He also admitted that under Ex. A.12 it is stated by defendants 1 to 3 that they would forfeit the amount received by them if the plaintiff and defendant No. 4 do not commence the roadwork. He further admitted that prior to the filing of the suit, he filed O.S. No. 171 of 1986 for mandatory injunction and the same was renumbered as O.S. No. 21 of 1993. He also admitted that they entered into agreement with S. Yadagiri in respect of the land adjoining the suit land; that they have met the entire expenses for survey and preparation of layout and that the vendors prepared the common layout and submitted it.
22. Against the above evidence, the General Power of Attorney Holder of defendants 1 to 3 was examined as D.W. 1. He stated that as per the terms and conditions of the agreement, it is the purchaser who has to get the land measured, divide, submit and obtain layout. The balance of sale consideration has to be paid within six months from the date of release of tentative layout by HUDA. The son of Yadagiri by name Suresh gave the copy of the layout to defendant No. 4 under an acknowledgment. The plaintiff and defendant No.4 could not develop the land as they have no money and on account of inter se disputes between them, he got issued a legal notice to the plaintiff and defendant No. 4 after three months of issuance of tentative layout informing them about the non-development of the property and the same was received by the plaintiff and defendant No. 4. Through the said notice it was informed to the plaintiff and defendant No. 4 that if they fail to develop the suit lands by laying roads and fail to comply with the terms of tentative layout, the agreement would be cancelled.
23. The evidence as well as the terms and conditions of the agreement and the pleadings clearly goes to show that it is the responsibility of the plaintiff and defendant No. 4, who are the joint agreement holders to obtain a layout at their expenses and it is also evident that to secure a joint layout in the entire area covered by both the agreement of sales i.e., dated 23.4.1984 and 20.4.1984, the owners got applied for a joint layout and intimated the same to the plaintiff. On HUDA demanding payment of development charges on 10.1.1985, under Ex. A.3, the vendors of the two agreements of sale received Rs. 1,54,725/- from the plaintiff and defendant No. 4 towards layout fee and development charges to be paid to HUDA towards layout permission in S. No. 36 of Satmarai Village and S. Nos. 645, 647, 653, 654, 655/1, 657, 658, 666/2 and part of S. Nos. 644, 646, 651 and 655 of Shamshabad Village. In view of the same, it is fallacy to contend that the plaintiff does not know the reason for the joint layout applied by the owners and the deposit of said amount to HUDA.
24. Under Ex. A.10 HUDA informed S. Yadagirf about the approval of draft layout plan with certain conditions. On communication of the same, notices were issued by defendants 1 to 3 under Ex.A.4 and A. 12 calling upon the plaintiff and defendant No. 4 to perform their part of contract, i.e., to develop the land by laying roads, and pay the balance of consideration within a period of six months as agreed by them as per the terms and conditions of agreement under Ex. A.1. But on receipt of the said notice the plaintiff submitted a reply calling upon defendants 1 to 3 to apply for separate layout. When it is the plaintiff, who has undertaken to apply for separate layout, it is his duty to prepare separate layout and forward the same to the vendors. But the plaintiff did not do so. Further, the plaintiff instead of paying the balance of sale consideration approached the vendors to secure separate layout. Meanwhile, the other joint agreement holder, namely, Mohd. Khasim Ali (defendant No. 4) cancelling the terms and conditions of the agreement, filed O.S. No. 19 of 1986 for refund of Rs. 50,000/- advance amount and rest of the amount towards developmental charges to HUDA, and also for damages at Rs. 1,50,000/-with interest, in which the plaintiff, who was impleaded as fourth defendant, received summons in January 1986 itself. On defendant No. 4 filing the said suit, the plaintiff instead of filing suit for specific performance of agreement of sale, choose to file O.S. No. 171 of 1986 (O.S. No. 21 of 1993) for mandatory injunction calling upon defendants 1 to 3 to obtain a separate layout as per the terms and conditions of the agreement dated 23.4.1984, whereas the terms and conditions of the agreement provides contra, namely, it is the plaintiff and defendant No. 4, who have to-apply for a layout.
25. It is not pleaded by the plaintiff and defendant No. 4 that they were ready with a separate layout plan for the suit land and forwarded the same to defendants 1 to 3 for their signatures for enabling them to apply for separate layout as undertaken by them under the agreement. In view of the same, they never expressed their willingness to perform their part of contract, namely, developing the lands on receiving the tentative layout from the HUDA and payment of balance of sale consideration within six months from the release of the tentative layout by HUDA i.e., from 25/ 26.4.1985 (Ex. A.10), but insisted defendants 1 to 3 for obtaining separate layout for the lands covered by the agreement to gain time, and joint purchaser-defendant No. 4 choose to rescind the contract by filing O.S. No. 19 of 1986. Therefore, we have no hesitation in coming to the conclusion that the plaintiff miserably failed to perform his part of contract, which disentitled him to enforce the said agreement. The point No. 1 is answered accordingly.
Point No. 2:
26. The facts as narrated above clearly go to show that the plaintiff and defendant No. 4 entered into an agreement of sale under Ex. A.1 with defendants 1 to 3 to purchase Acs. 11.39 guntas and they have paid advance amount of Rs. 1,00,000/- i.e., Rs. 50,000/- each. On failure to comply with their part of contract, namely, development of lands by laying roads, divide the land into plots, secure prospective purchasers to buy the plots, and the payment of balance of sale consideration within six months, a notice was issued by defendants 1 to 3 calling upon the plaintiff and defendant No. 4 to perform their part of contract undertaken as per the agreement entered into by them and failure to do so, the amount paid by them towards advance will be forfeited apart from claiming damages, for which, the plaintiff and defendant No. 4 issued a reply notice under Ex.A.5 calling upon defendants 1 to 3 to apply for a separate layout afresh, though tentative layout was sanctioned under Ex. A.10. Further, defendant No. 4 having noticed that they cannot perform their part of contract in view of the litigation of adjoining land of Acs.90.00 for which they have entered into an agreement of sale with one S. Yadagiri and others, elected not to enforce the agreement-Ex. A.1, and fried a suit for refund of advance amount paid together with damages from defendants 1 to 3. The agreement is a joint one and not separable. It should be either enforced or rescind in whole but not in part unless that part is severable from the rest of contract. A person seeking for rescission cannot, in the alternative, sue for specific performance (see A.I.R. 1968 S.C. 1355).
27. There is nothing in Section 15 of the Specific Relief Act which forbids one of the joint purchasers to institute a suit for enforcing a contract and on the contrary the words "any party thereto" appearing in Clause (a) thereof clearly envisages that one or some of the joint purchasers can institute such a suit for specific performance. If the intention of the Legislature was that the joint purchasers should have to be clubbed together as plaintiffs it could have read "either party thereto" instead of "any party thereto". It is apt to place the reliance on the following passage from the judgment of the Privy Council in the case of Monghibai v. Cooverji Umersey .
It has long been recognized that one or more or several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged, can amend by joining their contracts as plaintiffs if they will consent or as co-defendants if they will not. Such cases as (1879) 11 Ch D 121 and (1898) 2 QB 380, are examples of this principle. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action. Once all the parties are before the Court, it can make the appropriate order and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants.
28. In view, of the same, all the other joint purchasers have been made as party defendants and nothing prevented them from being added as plaintiffs so as to enable them to assert their right under the contract and to obtain the relief, which the plaintiff asked for, jointly with him. In case, however, defendant No. 4, joint agreement holder, who have been added as defendant also intends to assert his right under the contract, it may be necessary to transpose him as plaintiff and the Court can pass a decree in his favour for specific performance. But the joint purchaser, defendant No. 4 abandoned the contract waiving his right to enforce the agreement by instituting the suit to refund of earnest amount and damages. Once the contract has not been kept alive, on institution of suit by the joint purchaser to which the plaintiff was also been impleaded as defendant, the plaintiff cannot enforce agreement against the wish of his joint purchaser.
A Division Bench of the Calcutta High Court in Safiur Rahman's case (supra), where the plaintiffs filed the suit for specific performance of the contract, but the other co-owners did not, and they refuse to join the plaintiffs in a suit against the contractor. The plaintiffs accordingly made them defendants. The Subordinate Judge decreed the suit, which was upheld by the District Judge. On appeal, the Calcutta High Court held that some of the parties to a single contract cannot enforce specific performance against their adversary and the other persons, who are defendants. In a suit for specific performance of a single contract the parties on each side must be marshalled as plaintiffs and defendants, and accordingly decreed the appeal by dismissing the suit with costs in all the Courts.
In view of the same, since the joint purchaser i.e., defendant No. 4 along with the plaintiff has not elected to enforce the agreement and chose to restrict his claim for refund of earnest amount and damages, the plaintiff cannot enforce the agreement by impleading the joint purchaser as a defendant against his wish that too after he I filed the suit in O.S. No. 19 of 1986. Point No. 2 is accordingly answered against the plaintiff and in favour of defendants 1 to 3.
Point No. 3:
29. It was Strenuously argued by Sri M.V.S. Suresh Kumar, learned Counsel for the plaintiff that once the findings recorded on the issues framed in O.S. No. 21 of 1993 have become final, against which, no appeal has been preferred by the defendants, the same will operate res judicata.
We do not see any force in the submission made by the learned Counsel for the respondent/plaintiff for the reason that the suit as such filed by the plaintiff was only for mandatory injunction directing defendants 1 to 3 to make an application to BUDA and obtain layout separately for suit schedule land of Acs. 11.39 guntas in S.No.36 situated at Satamrai Village, hamlet of Shamshabad Village and for perpetual injunction restraining them from alienating or encumbering the suit land.
The learned trial Judge on Issue N-6-2 observed that as a matter of, fact, in the instant case, the required fee for layout and development charges was paid to the General Power of Attorney Holder of defendants 1 to 3 and the legal heirs of late Yadagiri, who in turn paid the same to HUDA. Ex.A.3 is the receipt issued by the General Power of Attorney Holder of defendants 1 to 3 and the legal heirs of late Yadagiri for Rs. 1,54,725/- towards layout fee. Ex. A.10 is the certified copy of letter dated 26.4.1985 addressed by HUDA to late Yadagiri enclosed with layout sanctioned proceedings, which clearly goes to show that the layout will be sanctioned in the name of the vendors and on the application of the vendors. D.W. 1 admitted that the plaintiff and defendant No. 4 have obtained his signatures for obtaining layout sanction and at their request he has signed on the necessary documents. Therefore, though there is some ambiguity in Clause No. 3 of Ex. A.1, defendants 1 to 3 by their conduct of signing the necessary documents for sanction of layout, receiving the required fee and charges and depositing the same with HUDA, accepted their responsibility to obtain layout for the suit land from the HUDA. Therefore they are bound to obtain a separate layout for the suit land at the request of the plaintiff and defendant No. 4. Observing so, the learned Judge answered Issue No. 2 in favour of the plaintiff.
30. It is no body's case that the layout was not sanctioned by HUDA but what the plaintiffs contention is that when the joint layout application was approved by HUDA with certain conditions, they have insisted for separate layout from the defendants 1 to 3. In the absence of the plaintiff and defendant No. 4 preparing combined draft layout for the suit land and calling upon defendants 1 to 3 to sign the same as per the terms and conditions of the agreement, the plaintiff cannot obligate defendants 1 to 3 for obtaining separate layout.
31. On issue No. 3 it was specifically; held by the learned trial Judge that the plaintiff and defendant No. 4 might have prepared a combined draft layout for the suit land as well as the adjacent land and submitted the same through defendants 1 to 3, and other adjacent owners. Merely because a combined layout was sanctionda, it cannot be said that the plaintiff and defendant No. 4 cannot request defendants 1 to 3 to obtain separate layout for the suit land. At the most they are entitled to claim interest after eight months from the sanction of combined layout, instead of separate layout, on the ground that they are not responsible for the delay. Observing so, the learned Judge answered Issue No. 3 in favour of the plaintiff. Ultimately, the suit of the plaintiff was dismissed and no relief has been granted to the plaintiff.
32. Thus, though the subject-matter of the suits was one and the same, and though issue Nos. 2 and 3 answered in favour of the plaintiff, ultimately the suit of the plaintiff for mandatory injunction was dismissed, and no relief has been granted.
41. Section 96 of the Code of Civil Procedure adumbrates filing of appeal against decree but not against any findings. It is for the plaintiff, who has to file an appeal if aggrieved by the decree dismissing his suit and only in the event of such an appeal being filed, defendants 1 to 3 may choose to question the findings by way of cross-appeal. It is fallacy to contend that they have not preferred any appeal questioning the findings, as no appeal can be filed questioning the findings, unless there is a decree against them. In view of the same, we do not see any merit in the submission that the findings recorded in O.S. No. 21 of 1993 operates res judicata and the appeal of defendants 1 to 3 is liable to be dismissed in limine without any further adjudication.
33. For the reasons abovementioned and the findings reached by us at points 1 to 3, once the plaintiff failed to prove his readiness and willingness to perform his part of contract and he had chosen to file suit for mandatory injunction for obtaining a separate layout by defendants 1 to 3 without seeking specific performance initially,, even after defendant No. 4 elected not to enforce the agreement and filed a suit for refund of advance amount paid, the plaintiff having waited for nearly three years even after sanction of tentative layout without performing his part of contract, filed the suit for specific performance five days before expiry of three years, clearly goes to show that he is not ready and willing to perform his part of contract.
34. The Supreme Court in K.S. tyidyanadam's case, (supra), held as under.
The rigor of the rule evolved by Courts that time is not the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if the modified, particularly in the case of urban immovable properties. It is high time, the Court do so. In the instant case may be the parties knew of the circumstance regarding rising prices but they have also specified six months as the period within which the transaction should be completed. The said time limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as nonexistent? All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).
35. In the instant case, as the tentative layout was sanctioned under Ex. A.10, there is no justifiable reason forwarded by the plaintiff for not paying the balance of sale consideration after forming the roads and selling the plots to the third parties as agreed by them, even after defendants 1 to 3 called upon them to perform their part of contract. After the sanction of tentative layout, the plaintiff postponed the same on one pretext or the other and the other joint purchaser along with the plaintiff has not chosen to enforce the agreement. In view of the same, the plaintiff is not entitled to the discretionary relief of specific performance, therefore, the decree passed by the lower Court granting specific performance, cannot be sustainable and the same is liable to be set aside.
Accordingly, the appeal is allowed and the judgment and decree passed by the Additional Subordinate Judge, Ranga Reddy District dated 25.10.1995 in O.S. No. 191 of 1987 are set aside. Consequently, OS No. 191/1987 shall stand dismissed. There shall be no order as to costs.