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2013 DIGILAW 265 (KAR)

Hanamant Ganapati Kaluve v. Drakshayini

2013-02-28

B.V.NAGARATHNA

body2013
JUDGMENT B.V. Nagarathna, J.—Though this appeal is listed for admission with the consent of the Counsel on both sides, it is heard finally. The plaintiff in O.S. No. 53 of 2012 has filed this appeal, assailing the judgment and decree passed in O.S. No. 53 of 2012. 2. It is the case of the plaintiff that the suit property is an agricultural land measuring 1 acre 9 guntas at Moje Athani in Sy. No. 9/7D out of a larger extent of 8 acres 31 guntas. The defendant and her sons and daughters who are the owners of the suit property, had executed a registered agreement to sell in favour of defendant on 4-9-2010 before the Sub-Registrar, Athani for the sale of the property. The defendant on account of legal necessity in order to discharge the bank debt, in December 2010 negotiated with the plaintiff who agreed to purchase the suit property vide agreement to sell dated 22-12-2010 for a valuable consideration of Rs. 14,00,000/- on payment of a sum of Rs. 2,00,000/- as earnest money. The sale transaction, therefore, was to be completed within six months but despite repeated requests made by the plaintiff, the defendant failed to execute the sale deed. Therefore, the plaintiff filed a suit for specific performance of the agreement dated 22-12-2010. 3. On service of suit summons, the defendant appeared and filed written statement denying the allegations and averments made in the plaint stating that there was no such agreement to sell entered into with the plaintiff and neither any earnest money was received; that the agreement to sell dated 22-12-2010 on the basis of which specific performance has been sought by the plaintiff, is a got up document. Alternatively it was also contended that the plaintiff was not ready and willing to perform his part of the contract; that on several blank papers, signatures of the defendants were obtained and the said papers have been used for concocting an agreement to sell dated 22-12-2010. Therefore, the defendants sought for dismissal of the suit. 4. Based on the above pleadings, the Trial Court framed the following issues for its consideration: 1. Whether plaintiff proves that defendant is the registered power of attorney holder of her sons and daughter to deal with suit property? 2. Whether plaintiff proves that defendant agreed to sell the suit property for Rs. 14,00,000/- and by receiving Rs. 4. Based on the above pleadings, the Trial Court framed the following issues for its consideration: 1. Whether plaintiff proves that defendant is the registered power of attorney holder of her sons and daughter to deal with suit property? 2. Whether plaintiff proves that defendant agreed to sell the suit property for Rs. 14,00,000/- and by receiving Rs. 2,00,000/- as earnest money executed agreement of sale on 22-12-2010? 3. Whether plaintiff proves that he was ever ready and willing to perform his part of the contract? 4. Whether defendant proves that suit is not maintainable and is liable to be dismissed with compensatory costs in view of the pleadings in Paras 7 and 8 of the W.S.? 5. Whether plaintiff is entitled for the relief of specific performance or in the alternative refund of earnest money with interest? 6. What order or decree? 5. Strangely, after framing of the issues, the suit was not tried by recording the evidence of the respective parties. The Trial Court on the basis of the decision of the Apex Court in the case of N.V. Srinivasa Murthy and Others Vs. Mariyamma (dead) by Proposed LRs. and Others, AIR 2005 SC 2897 , dismissed the suit of the plaintiff by answering issue No. 4 in the affirmative and by stating that the other issues would not survive for consideration. In other words, the Trial Court has stated that the suit filed by the plaintiff was not maintainable and was liable to be dismissed based on the judgment of the Supreme Court. Being aggrieved by the said judgment and decree, the plaintiff is in appeal. 6. I have heard the learned Counsel for the appellant and the learned Counsel for the respondent and perused the material on record. 7. It is not in dispute that on the basis of the alleged agreement to sell dated 22-12-2010, a suit for specific performance has been filed. The said agreement is denied by the defendant. In respect of respective pleadings of the parties, as many as six issues were framed by the Trial Court. As far as issue No. 4 is concerned the same deals with maintainability of the suit. The said agreement is denied by the defendant. In respect of respective pleadings of the parties, as many as six issues were framed by the Trial Court. As far as issue No. 4 is concerned the same deals with maintainability of the suit. While dealing with the said issue, the Trial Court has considered the arguments of the Counsel for the defendant with regard to the execution of the agreement namely as to whether it was in fact executed by the defendant or whether it is a concocted document. In other words as to whether, it is not a valid document or not. The arguments of the defendant were countered by the Advocate for the plaintiff by saying that the maintainability of the suit does not touch upon any question of law nor it touches upon the jurisdiction which could be considered as a preliminary issue without any trial. But the Trial Court has simply proceeded to examine the original documents and has come to the conclusion that the said document is a concocted one without examining any of the parties to the suit or any other witness. While doing so, the Trial Court had relied upon the decision of the Supreme Court in N.V. Srinivasa Murthy's case. In N.V. Srinivasa Murthy's case, the Supreme Court was dealing with the question as to whether the suit was barred on account of limitation, provisions of Specific Relief Act, 1963 and also vis-a-vis under Order 2, Rule 2 of the Code of Civil Procedure, 1908. It is on the basis of the said aspects it was held that the suit filed was vexatious and observed that the plaint ought to be rejected under clause (d) of Order 7, Rule 11 of CPC. At Para 7 of the judgment the Supreme Court on the facts of the case before it observed as follows: 7. After examining the pleadings of the plaint as discussed above, we are clearly of the opinion that by clever drafting of the plaint the civil suit which is hopelessly barred for seeking avoidance of registered sale deed of 5-5-1953, has been instituted by taking recourse to orders passed in mutation proceedings by the Revenue Courts. Civil Suit No. 557 of 1990 was pending when the present suit was filed. Civil Suit No. 557 of 1990 was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 5-5-1953 to be not really a sale deed but a loan transaction. Relief of reconveyance of property under alleged oral agreement of return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose 'cause of action' on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of clause (d) of Order 7, Rule 11 of the Code of Civil Procedure. 8. This is not the position in the instant case. The submission of the Counsel for the appellant in this context has to be accepted, namely that the Trial Court without recording any evidence could not have given a finding with regard to the validity of the agreement to sell dated 22-12-2010 by simply examining the document and other materials produced. In other words, there has been no trial which has taken place in the suit. Maintainability of the suit is not vis-a-vis a limitation or under any provisions of Order 7, Rule 11 of the CPC. In fact, issue No. 4 itself is not correctly framed. The said issue should read as follows: Whether the defendant proves that the agreement to sell dated 22-12-2010 is a concocted document and therefore not binding on the defendant? 9. There is no issue touching upon the maintainability of the suit in the instant case having regard to the other issues framed. Therefore, the Trial Court was not right in dismissing the suit particularly, when no evidence has been recorded and without there being any preliminary issue which could have tilted the fate of the suit either way on the question of maintainability without recording any evidence. It is also necessary to observe that on account of the approach of the Trial Court, the plaintiff has been constrained to file this appeal by paying huge Court fee. It is also necessary to observe that on account of the approach of the Trial Court, the plaintiff has been constrained to file this appeal by paying huge Court fee. It is strange that the Trial Court has totally ignored the elementary aspects of the trial of the suit and has simply proceeded to dismiss the suit on the basis of the judgment of the Supreme Court which in any case does not apply to the facts of this case. Trial Courts must not be in a hurry to dispose of suits in a perfunctory manner without resorting to trial and by misunderstanding the judgments of the higher Courts. Hence, the judgment and decree of the Trial Court is set aside by allowing the appeal. The matter is remanded back to the Trial Court to record the evidence on the issues framed by it and on also on the recast issue No. 4 as framed above and after recording evidence of the parties, to dispose of the suit in accordance with law. Since the matter is remanded and the parties are represented by their respective Counsel, they are directed to appear before the Trial Court on 2-4-2013 without insisting on a notice from the Trial Court. On such appearance of the parties, the Trial Court to dispose of the suit in terms of the observations made above and in accordance with law. In view of the disposal of the appeal, I.A. No. 1 of 2012 for T.I. does not survive for consideration. B.V. Nagarathna, J. 1-3-2013 ORDER ON FOR BEING SPOKEN TO Since the matter is now remanded to the Trial Court, office is directed to refund the Court fee in terms of Section 64(1) of the Karnataka Court-fees and Suits Valuation Act, 1958.