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1997 DIGILAW 525 (KAR)

JAHRUDDIN v. MAGUTUMSAB

1997-09-05

T.N.VALLINAYAGAM

body1997
T. N. VALLINAYAGAM, J. ( 1 ) -THE L. Rs of defendant-No. 1 Smt. Bisabi are the appellants before this Court. The suit for a direction to be given to the defendants to depose before the Deputy Commissioner, Dharwad for permission in respect of transfer of. leasehold rights and to execute deed of sale or leasehold rights by receiving Rs. 1500/- before the Sub-Registrar; in default, appoint a commissioner to take permission of the Deputy commissioner and execute a sale deed of leasehold rights on behalf of the respondents, was dismissed by the trial Court, but however decreed by the first Appellate Court on appeal by the plaintiff. Now the L. Rs. of the first defendant are before this Court in this second appeal. ( 2 ) THE case of the plaintiff is that the defendant is a permanent leaseholder of the property bearing R. S. No. 65, measuring 3 guntas out of 1 acre. 11 guntas. The suit property is a vacant land. The defendant is a permanent lease holder from 5. 9. 1959, who has purchased the lease hold right from one nabi Naik and his brother. The defendant first gave the suit property to the plaintiff on rental basis of Rs. 15/- per month and made an agreement of sale of the leasehold rights. The plaintiff and the defendants entered into an agreement on 17. 7. 1977 on condition that the defendant is to transfer the leasehold rights to the plaintiff for Rs. 2500/1 He received Rs. 500/- and the balance of Rs. 2000/- has to be paid. It appears, -the defendant first agreed to come and depose before the Deputy Commissioner, Dharwad when called for: The plaintiff requested the defendant several times to come and depose before the Deputy Commissioner, Dharwad and to execute the deed, but he could not care for the same. When the suit notice was refused to be received by the defendants,. the present suit is filed for the relief afore-mentioned. ( 3 ) THE defendants denied the execution of the sale deed on 17. 7. 197. 6. According to her the plaintiff had created bogus document which is not binding on her. During the pendency of the suit original defendant Bisabi died and her L. R. Smt. Bibijaharbi wife of mohammedsab was brought on record. ( 3 ) THE defendants denied the execution of the sale deed on 17. 7. 197. 6. According to her the plaintiff had created bogus document which is not binding on her. During the pendency of the suit original defendant Bisabi died and her L. R. Smt. Bibijaharbi wife of mohammedsab was brought on record. During the pendency of the appeal the L. R. of the original defendant Bibijaharbi also died on 27. 3. 1988. Therefore, the L. R. Nos. l (a) to l (e) were brought on record. . The first appellate court allowed the appeal directing the l. Rs of the deceased defendant to appear before the Deputy Commissioner for. permission and in respect of transfer of lease-hold rights and to execute the sale deed of leasehold rights of the suit property after receiving rs. 1500/- before the Sub-Registrar. Now respondents l (b) to l (f) are before this Court in this second appeal. Though it is not made clear, respondent No. l (a) must have been died as he was already aged about 75 years in 1982. ( 4 ) IN any case pleading is important and it should be specific, clear, categoric and shall hot afford any room for doubt. If the pleading is not clear, a decision based on such pleading would tend to lead. to ambiguous decisions. 'it is true that the substance of the pleading is to be considered and not merely jugglery of wordings. May be in the form of the pleadings, a plaintiff may not be able to express, in the language used by him what he wants, but the prayer should be specific so that when the prayer is granted, a decree, to be drawn as per such prayer, should be unambiguous, clearly acceptable and make the relief reach the decree holder. Otherwise, the entire exercise of conducting a case upto the level of highest court would become a farce. Real meaning of the rights between the parties should be spelt and understood in a proper perspective. ( 5 ) PRAYER in the plaint is certainly ambiguous. The prayer is that "the defendant be directed to depose before the Deputy Commissioner, dharwair for permission in respect of transfer of lease-hold rights". How a direction can be given and how the plaintiff would be entitled to such a direction to be given to the defendant is understandable. ( 5 ) PRAYER in the plaint is certainly ambiguous. The prayer is that "the defendant be directed to depose before the Deputy Commissioner, dharwair for permission in respect of transfer of lease-hold rights". How a direction can be given and how the plaintiff would be entitled to such a direction to be given to the defendant is understandable. As old saying goes "you can take the horse to the water but you cannot definitely make it drink''. Even if a direction is given to the defendant to appear before the Deputy Commissioner, how could she be-compelled to depose. Now that the defendant is dead-, how could such a command be directed against her L. Rs. Even if a decree is granted, how such decree becomes acceptable. These are all things which the Courts below have completely forgotten. It is elementry principle of law that any pleading should be to a positive direction to do an act by the court. Take for example, the prayer for specific performance, wherein a prayer is made to direct the defendant to execute the sale deed and in the alternative the court is called upon to execute the sale deed. Now that sort of prayer is sought to be extended in para 2 of the plaint wherein alternatively a commissioner may be directed to go and appear before the Deputy-Commissioner dharwar and depose. Such a prayer can never be imagined nor could be executed. What the commissioner would go and depose and if the commissioner goes and 'deposes before the deputy Commissioner and get an order, can such order be primarily given by this court. One can understand a direction sought for to be given to the Deputy Commissioner to accord permission for sale or to reject such permission. But that is not the prayer made here. This right of approach is certainly not proper nor could be put into operation or execution. In this view, the prayer being not clear and understandable, normally the plaint should be dismissed, but 1 do not want to deprive the plaintiff of a right, if he has got one and give an opportunity to formulate such a right in the manner known to law and in the manner where the law can. come to his help ( 6 ) AS this. come to his help ( 6 ) AS this. aspect of the matter has not been considered by the Courts below at all, 1 am inclined to set aside the 'finding of the courts below and remit the matter back to the trial Court with a direction to permit the plaintiff to amend the plaint within a time frame to be fixed by the trial Court. If, however, the plaint is not amended on or before three months from the date of appearance mentioned below, the suit shall stand dismissed. ( 7 ) NORMALLY in a suit for specific performance the Court should be in favour of the enforcing the contract of sale, if it-is proved to be true. The finding of the Appellate Court is that the agreement is true and is enforceable. 1 am inclined to uphold such finding. But, however in view of the fact, that 1 am giving an opportunity to both the parties to go before the trial Court, setting aside the entire finding of both the Courts below and remit the matter back to the trial Court to be disposed of in the light of the observations and directions given above. The parties are directed to appear before the trial Court on 29. 01. 1998. ( 8 ) THE second appeal- is; therefore, allowed and the matter is remitted back to the trial Court. No costs. Appeal allowed. --- *** --- .