Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 353 (KAR)

R. GANGADHARAPPA v. KONDLA NANJAMMA

2016-04-13

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : The plaintiff, in a suit for specific performance of contract, is the appellant in this second appeal. Suit was decreed with cost and the defendant was directed to execute a registered sale deed as per the Agreement of Sale in favour of the plaintiff by receiving the balance sale consideration of Rs. 15,000/-. The appeal filed by the defendant was allowed and the suit was dismissed by the Lower Appellate Court. Assailing the said Decree, this second appeal was filed by the plaintiff. For convenience, the parties will be referred with reference to their rank in the suit. 2. The plaintiff’s case, in brief is that: The suit schedule property was granted to the defendant on 21.07.1994 and he being the absolute owner, executed an agreement dated 17.11.2004, agreeing to sell the suit schedule property for Rs. 30,000/- and received Rs. 15,000/- as advance amount. It was stated that, since there was ‘Non Alienation Clause’ for 15 years in the Grant Certificate, the defendant agreed to execute the Sale Deed by receiving the balance sale consideration amount, after the expiry of the ‘Non Alienation Period’. The sale deed having not been executed even after a demand notice was served i.e., after the expiry of ‘Non-Alienation Period’, the suit was filed. 3. The defendant filed written statement and denied the averments made in the plaint and contended that the agreement, even if it is assumed to have been executed, is void, since the suit schedule property is not alienable for a period of 15 years. Bar of limitation and other defences were also taken. 4. On the said pleadings the following issues were framed: 1. Whether the plaintiff proves that the defendant has executed agreement of sale on 17.11.2004 agreeing to sell the suit schedule property for a sum of Rs.30,000/-? 2. Whether the plaintiff proves that, the defendant has received Rs.15,000/- on the date of agreement? 3. Whether the plaintiff is ready and willing to perform his part of the contract? 4. Whether the plaintiff proves his possession over the suit schedule property? 5. Whether the suit is barred by limitation? 6. Whether the defendant proves that, the alleged agreement is void as contended in para No.17 of the written statement? 7. Whether the plaintiff is entitled for the reliefs as prayed for? 8. What order or decree? 5. Both parties have led oral and documentary evidence. 5. Whether the suit is barred by limitation? 6. Whether the defendant proves that, the alleged agreement is void as contended in para No.17 of the written statement? 7. Whether the plaintiff is entitled for the reliefs as prayed for? 8. What order or decree? 5. Both parties have led oral and documentary evidence. After considering the evidence, Trial Court answered issue Nos.1, 2, 3, 4 and 7 in the affirmative and issue Nos.5 and 6 in the negative and decreed the suit. Feeling aggrieved, defendant filed the appeal, under S.96 of CPC. 6. Lower Appellate Court raised the following points for determination: 1. Whether the trial court has not properly and correctly appreciated the oral and documentary evidence? 2. Whether the judgment and decree of the trial court calls for any interference by this court? 3. What order OR decree? 7. After hearing the arguments of the learned advocates and by relying upon a judgment dated 23.09.2010 passed in RSA No.1244/2004, Lower Appellate Court has held that the sale agreement between the parties is not a valid document, since it was entered into during the ‘Non Alienation Period’ and as such, it is opposed to public policy and the contract is void under S.23 of the Indian Contract Act. 8. Sri J.N. Naveen, learned advocate, in support of the appeal, contended that the Lower Appellate Court’s approach was clearly erroneous. He submitted that the Judgment dated 23.09.2010 passed in RSA No.1244/2004, on which reliance was placed, had been set aside on 22.07.2013 in R.P.No.82/2013. He submitted that the Lower Appellate Court has relied on a Judgment, which did not exist on the date the appeal was allowed. He further submitted that the Order passed in R.P.No.82/2013 has not been considered by the Lower Appellate Court. By placing reliance on the Division Bench decisions in (i) PARVATAGOUDA NINGANAGOUDA PATIL Vs. GUDDAPPA AND ANOTHER, (2009) 1 KAR.L.J. 547 (DB) AND (ii) SYED ZAHEER AND OTHERS Vs. C.V. SIDDAVEERAPPA, 2010 (2) KCCR 954 (DB), Sri J.N. Naveen submitted that the suit agreement is not void on account of non alienation clause in the Grant Certificate. By placing reliance on the Division Bench decisions in (i) PARVATAGOUDA NINGANAGOUDA PATIL Vs. GUDDAPPA AND ANOTHER, (2009) 1 KAR.L.J. 547 (DB) AND (ii) SYED ZAHEER AND OTHERS Vs. C.V. SIDDAVEERAPPA, 2010 (2) KCCR 954 (DB), Sri J.N. Naveen submitted that the suit agreement is not void on account of non alienation clause in the Grant Certificate. Learned advocate submitted that the Court below has committed illegality in not following the said two decisions of the Division Benches, which are squarely applicable, and in holding that the Judgment in RSA No.1244/2004, being in later point of time, prevails, since there is conflict with the earlier decisions. 9. Per contra, Sri K.N. Nitish, learned advocate for the respondent, submitted that the sale agreement in question is void, on account of the ‘Non alienation clause’ in the Grant Certificate. Learned counsel submitted that the judgment and decree of the Trial Court being contrary to the decision in the case of SMT. PARVATHAMMA Vs. SMT. UMA AND OTHERS, (2011) 2 KAR.L.J. 620 , Lower Appellate Court is justified in holding that the plaintiff ought not to have entered into an agreement of sale with the defendant. By relying upon the decision of Apex Court in SATISH KUMAR Vs. KARAN SINGH AND ANOTHER, 2016 SAR (Civil) 269, learned counsel submitted that the Decree passed by the Trial Court is liable to be set aside, in as much as, no decree for specific performance can be passed on the basis of suit document, as the subject transaction is opposed to public policy and the contract is void under S.23 of the Indian Contract Act. 10. Substantial question of law raised for consideration, by a separate order passed today i.e., prior to hearing of this appeal is “Whether the Lower Appellate Court was justified in allowing the appeal by placing reliance on the Judgment dated 23.09.2010 passed in RSA No.1244/2004?”. 11. Undeniably, the attention of the Lower Appellate Court was invited to the decisions rendered by the Division Benches in (i) Parvatagouda Ninganagouda Patil and (ii) Syed Zaheer cases (supra). Ratio of law laid down in the said decisions has not been applied by the Court below, because of it placing reliance on the decisions in (i) Parvathamma and (ii) RSA No.1244/2004 (supra). Lower Appellate Court has held that the later decision prevails, when there is conflict with the earlier decision. 12. Ratio of law laid down in the said decisions has not been applied by the Court below, because of it placing reliance on the decisions in (i) Parvathamma and (ii) RSA No.1244/2004 (supra). Lower Appellate Court has held that the later decision prevails, when there is conflict with the earlier decision. 12. Decisions rendered in the cases of (i) Smt. Parvathamma (supra) and (ii) RSA No.1244/2004, are by the Single Benches. It is now well-settled position of law, that if there are two conflicting Judgments of Supreme Court or High Court, of Benches with equal number of Judges, then the later Judgment will prevail over the earlier. But, where earlier Judgment is of a larger Bench and the later Judgment is of a smaller Bench, the ratio laid down by the larger Bench will be binding and should be followed in preference to the decision of smaller Bench though it is later in point of time. 13. In THE STATE OF U.P. Vs. RAM CHANDRA TRIVEDI, (1976) 4 SCC 52 , Apex Court has held, that where High Court finds a conflict between the views expressed by the larger Bench and a smaller Bench, the proper course for the High Court is to find out the ratio decidendi of the decision of the larger Bench and follow the same in preference to the opinion expressed by the smaller Bench. 14. In a situation when there is conflict between two decisions of the Supreme Court, whether it is the later of the two decisions or the decision of the larger of the Benches which rendered those decisions be followed by High Court and other Courts in the country, came up for consideration before a Full Bench of five learned Judges of this Court in the case of GOVINDANAIK G. KALAGHATIGI Vs. WEST PATENT PRESS CO. LTD. AND ANOTHER, AIR 1980 KAR 92 (FB) and the said question was answered as follows: “5………If two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by larger Bench while other is by smaller Bench, the decision of larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and others courts.” (emphasis supplied) 15. In view of the above, the finding recorded by the Court below that the decisions in (i) Smt. Parvathamma and (ii) RSA No.1244/2004 (supra), being later in point of time, prevail over the earlier decisions in, (i) Parvatagouda Ninganagouda Patil and (ii) Syed Zaheer (supra), as rightly pointed out by the learned advocate for the appellant is based on a wrong understanding of law. Hence, the view expressed by the Lower Appellate Court is absolutely indefensible and the Judgment and Decree passed, impugned herein, is liable to be negated. 16. It is not in dispute that the Judgment dated 23.09.2010 passed in RSA No.1244/2004 was set aside in Review Petition No.82/2013 decided on 22.07.2013, after making reference to a decision in the case of Mrs. SUSHILA A. DASS Vs. Mrs. MARY BOLGER, ILR 1988 KAR 1413. The impugned Judgment is void, as in passing of the same, Lower Appellate court has mainly relied upon the Judgment dated 23.09.2010 passed in RSA No.1244/2004, which Judgment, as already stated was set aside on 22.07.2013 in R.P.No.82/2013. 17. It does not appear that the order dated 22.07.2013 passed in R.P.No.82/2013, setting aside the Judgment dated 23.09.2010 passed in RSA No.1244/2004 was brought to the notice of the Lower Appellate Court. Members of the Bar being the Officers of the Court have a bounden duty to assist the Court. While citing a judgment, learned members of the Bar have a duty to find out, whether the cited judgment has been overruled or dissented, subsequently. Citing of a Judgment, which has been overruled by the larger Bench of the High Court or by the Apex Court, without disclosing the fact that it has been overruled was held, is a matter of serious concern, in the case of STATE OF ORISSA Vs. NALINIKANTA MUDULI (2004) 7 SCC 19 . Supreme Court has expressed its anguish at the falling standards of professional conduct, when an overruled decision was cited. 18. In the present case, both Lower Appellate Court and learned advocates have dealt with the matter casually. 19. NALINIKANTA MUDULI (2004) 7 SCC 19 . Supreme Court has expressed its anguish at the falling standards of professional conduct, when an overruled decision was cited. 18. In the present case, both Lower Appellate Court and learned advocates have dealt with the matter casually. 19. Since the Court below has not considered the appeal in accordance with law, the impugned Judgment and Decree being unsustainable, is set aside and the appeal remanded for decision afresh, by taking into account the contentions of both sides on all questions of law and fact. No opinion is expressed regarding merit of the case of the parties. In order to expedite the hearing and disposal of the case, both parties are directed to appear in the Court of the Prl. Senior Civil Judge at Chikkaballapur, on 30th April, 2016 and receive further orders. The appeal shall be decided before 30th September, 2016.