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2010 DIGILAW 929 (KAR)

R. N. Padmavathi v. Chikka Gangappa

2010-08-27

A.N.VENUGOPALA GOWDA

body2010
Judgment :- Venugopala Gowda, J This writ petition is directed against the order dated 10.8.10 on I.A. V passed in O.S.4361/06 declining to decree the suit on the basis of the admission contained in the written statement of the respondents. 2. The facts in a nutshell are that; The respondents/defendants have executed an agreement of sale in favour of the petitioner/plaintiff on 25.11.05 to sell property bearing Khaneshumari No.71/79 of Somashettyhalli Village, Yeshwantpur Hobli, Bangalore North Taluk, measuring 21/2 guntas, for a consideration of Rs.1,30,000/-. Petitioner sent a notice dated 6.5.06 calling upon respondents to execute the sale deed, petitioner filed O.S.4361/06 on 23.05.06 against the respondents seeking the relief of specific performance. 3. The respondents have filed written statement on 4.9.06 and sought dismissal of the suit with exemplary cost. 4. The petitioner filed I.A.V on 5.8.10 under Order 12 Rule 6 CPC praying the Court to decree the suit based on the admission made by the respondents in their written statement. The respondents filed objections on 9.8.10 and resisted the prayer in I.A>V. Learned Trial Judge did not find merit in I.A.V and has dismissed the same with cost. Seeking quashing of the said order, this writ petition has been filed. 5. The stand of the plaintiff before the Trial Court was, since the execution of the suit document has been admitted by the respondents in their written statement, the judgment having regard to the admission be passed. 6. In order to appreciate this controversy, it is useful to set up the relevant averments made in the plaint and the written statement of the parties. Paras 3 and 4 of the plaint on which the plaintiff places reliance read as follows. “3. The plaintiff further submits that under the sale agreement dated 25.11.05, the defendants, as the joint owners, have offered to sell the schedule property in favour of the plaintiff herein for the total sale consideration of Rs.1,30,000/- (Rupees One Lakh Thirty Thousand only). As on the date of the said sale agreement, the defendants had received from the plaintiff an advance sale price of Rs.25,000/- by way of cash and the defendants promised to register the sale deed in favour of the plaintiff or his nominee, within three months’ from the date of getting the khata duly transferred to their names form the name of Smt. Gangamn’ 4. The plaintiff further states that thereafter, on 12.01.06, the first defendant received from the plaintiff a further payment of Rs.10,000/- (Rupees Ten Thousand only) by way of cash, in the presence of witnesses.” 7. In the written statement filed by the defendants, the said submissions have been dealt with and the relevant paras are 2, 3, 7 and 9 and the same read as follows: “2. The defendants submit that, it is true that on 25.11.05 the defendants have executed an agreement of sale on favour of the plaintiff agreeing to sell the schedule property for a total sale consideration as mentioned in the said agreement. As per the agreement of sale the time was fixed to complete the sale transaction within three months from the date of getting the khatha changed to the name of the first defendant from the name of the first defendant’s deceased mother. The khatha in respect of suit schedule property has been changed to the name of the first defendant from the concerned Panchayath on 17.4.06. The change of khatha was informed to the plaintiff immediately on the next day i.e., 18.4.04. The defendants never refused to execute the sale deed in favour of the plaintiff as per the terms of the agreement of sale. The plaintiff who rush to Court enforcing the agreement of sale, before stipulated time as mentioned in the agreement of sale. 3. The defendants submit that, the averments made in paragraphs No.2 and 3 are admitted as correct. However the allegations made in paragraph No.3 of the plaint that on 12.1.06, the first defendant has received a sum of Rs.10,000/- as cash in the presence of the witnesses in hereby specifically denied as false, the plaintiff is put to strict proof of the same. 7. The averments made in paragraph No.8 of the plaint that she is always ready and willing to pay the balance of price and to complete the sale transaction is hereby specifically denied as false the plaintiff is put to strict proof of the same. The further allegations that defendants by their deceitful tactics or delaying the registration and are now making arrangement to create third party encumbrance of the suit schedule property to defeat the claim of the plaintiff is hereby specifically denied as false the plaintiff is put to strict proof of the same. The further allegations that defendants by their deceitful tactics or delaying the registration and are now making arrangement to create third party encumbrance of the suit schedule property to defeat the claim of the plaintiff is hereby specifically denied as false the plaintiff is put to strict proof of the same. The plaintiff never stated in the plaint what type of investment and how much money was invested on the suit property has not been stated in the plaint. The plaintiff has not made any investment on suit schedule property to get return out of the same. 9. There is no cause of action arose for the plaintiff to file the above suit against the defendants as such the suit is liable to be dismissed under Order VII Rule 11 of CPC. Since the relief claimed in the plaint is premature in nature, the plaintiff is not entitled for any specific performance of sale agreement dated 25.11.05 as such question of directing the defendants to execute the sale deed in favour of the plaintiff by receiving the balance sale consideration of Rs.95,000/- does not arise.” 8. It is clear from the aforesaid averments made in the written statement that, the defendants have disputed: (a) The payment of Rs.10,000/- in the presence of the witnesses on 12.01.06: (b) The readiness and willingness on the part of the plaintiff to pay the balance price and complete the sale transaction and (c) Entitlement of the plaintiff for specific performance of the sale agreement dated 25.11.05. However, so far as the execution of the sale agreement, receipt of advance consideration of Rs.25,000/- and the receipt of notice is concerned, there is no denial by the respondents. 9. Sri D.N. Nanjunda Reddy, Learned Senior Advocate, appearing for the petitioner – plaintiff, by relying on the decisions in the cases of UTTAM SINGH DUGAL AND CO. LTD. However, so far as the execution of the sale agreement, receipt of advance consideration of Rs.25,000/- and the receipt of notice is concerned, there is no denial by the respondents. 9. Sri D.N. Nanjunda Reddy, Learned Senior Advocate, appearing for the petitioner – plaintiff, by relying on the decisions in the cases of UTTAM SINGH DUGAL AND CO. LTD. vs. UNION BANK OF INDIA AND OTHERS1; CHARNJIT LAL MEHRA AND OTHERS vs. SMT.KAMAL SAROJ MAHAJAN AND ANOTHER2; and KARAM KAPAHI AND OTHERS vs. LAL CHAND PUBLIC CHARITABLE TRUST AND ANOTHER3 contended that, in view of the admissions made in the written statement, noticed supra, the provision under Rule 6 of Order 12 of CPC is attracted and in view of the ratio of law laid down by the Apex Court, the judgment based on admissions ought to have been passed and in not doing so, the Trial Court has committed procedural impropriety, irrationality. 10. In the case UTTAM SINGH (supra), the provision of Order 12 Rule 6 CPC was considered and it was made clear “whenever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed”, the principles will apply. 11. In the case of CHARANJIT LAL MEHRA (supra), it has been held that, Order 12 Rule 6 CPC is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case, in order to expedite and dispose of the matter, such admissions can be acted upon. 12. In the case of KARAM KAPAHI (supra), in the facts of that case, there being a clear admission on the part of the lessee about non payment of lease rent and the said admission was made by the lessee in several proceedings apart from its pleading in the suit, it has been held that, the principles of Order 12 Rule 6 apply. 13. The principles of law laid down in the decisions on which reliance is placed by Sri D.N. Nanjunda Reddy, can be followed in this case only if there is a clear and unequivocal admission of the case of the petitioner by the respondents. 13. The principles of law laid down in the decisions on which reliance is placed by Sri D.N. Nanjunda Reddy, can be followed in this case only if there is a clear and unequivocal admission of the case of the petitioner by the respondents. Whether or not there is a clear, unambiguous admission by the respondents of the case of the petitioner is a question of fact and the decision of this question depends on the facts of the case. The principles laid down in the decisions supra, cannot be applied in the instant case in view of the totally different fact situation. 14. Sri D.N. Nanjunda Reddy, made it clear that, the petitioner is confining her case of admissions only to the pleading in the written statement and not to any other materials. That being the position, I find that, in the written statement of respondents, there is no clear case of admission of the case of the plaintiff, except the execution of sale agreement and receipt of the advance sale consideration amount of Rs.25,000/-. 15. In the case of ABDUL RAHMAN AND BROTHERS vs. PARVATI DEVI4 it has been held that, before a Court can act under Order 12 Rule 6 CPC, the admission must be clear and unambiguous. 16. In the case of KARAM KAPAHI (supra), it has been held as follows: “However, the provisions under Order 12 Rule 6 of the Coe is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word “may” has been used.” 17. The provisions under Section 16 of the Specific Relief Act, 1963, imposes a personal bar. The Court has to grant relief on the basis of the conduct of the person seeking the relief. Section 16(c) of the Act, mandates the plaintiff to aver in the plaint and establish the fact in the evidence aliunde that, he has always been ready and willing to perform his part of the contract. The basic principle behind the said provision read with Explanation-II there under is that, any person seeking benefit of the specific performance of the contract must manifest that his conduct has been blemishless, entitling him to the specific relief. 18. Grant of decree for specific performance is a matter of discretion under Section 20 of the Act. The Court is not bound to grant such relief merely because it is lawful to do so. 18. Grant of decree for specific performance is a matter of discretion under Section 20 of the Act. The Court is not bound to grant such relief merely because it is lawful to do so. Discretion is to be exercised on sound and settled judicial principles. One of the grounds on which the Court may decline to decree specific performance is where it would be inequitable to enforce specific performance. To ascertain these facts, there has to be a trial of the suit. 19. Indisputedly, the agreement was entered into on 25.11.05 for sale consideration amount of Rs.1,30,000/-. The petitioner states that she paid Rs.10,000/- by cash on 12.01.06, which fact has been denied. The plaintiff contends that, she was ready and willing to pay the balance sale consideration of Rs.95,000/- and the defendants are not showing any interest to perform their part of the sale agreement, which averment has been specifically denied by the defendants in para 7 of their written statement. 20. There is no clear and categorical admission of the case of the plaintiff by the defendants in the written statement filed to the suit. Judgment ought not to follow unless the admissions are clear and unequivocal. In the instant case, there is no clear and unequivocal admission of the case of the plaintiff and on the other hand, there is a contest by the defendants. The Trial Court while passing the impugned order has noticed the said facts in view of which it did not find merit in I.A. V. The petitioner-plaintiff has to prove her case before the Trial Court in accordance with law. The Trial Court has not committed any procedural impropriety or irrationality in passing the impugned order. I do not find any illegality as such in the impugned order to interfere with the same in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. The writ petition being devoid of merit, stands rejected. It is made clear that the findings and observations made herein being confined to the examination of the case with regard to the attraction or other wise of the provision under Order 12 Rule 6 of CPC, shall not be construed as expression of opinion on the merits of the case of either of the parties. It is made clear that the findings and observations made herein being confined to the examination of the case with regard to the attraction or other wise of the provision under Order 12 Rule 6 of CPC, shall not be construed as expression of opinion on the merits of the case of either of the parties. The Trial Court shall decide the suit based on the evidence that may be placed on its record by the parties, uninfluenced by the order passed by it on I.A.V. impugned herein. Ordered accordingly.