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2018 DIGILAW 32 (ORI)

Deepak Kumar Sahani v. Aswini Kumar Babu

2018-01-05

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. Filing the writ petition the petitioners challenge the judgment dated 29.06.2002 passed in Civil Revision No.16 of 2000, thereby the District Judge while allowing the revision in reversal of the order passed by the trial court dated 19.04.2000 in Misc. Case No.21 of 1996, arising out of Title Suit No.102 of 1989 available at Annexures-7 and 6 respectively. 2. Factual background involved in the case is; one Syamasundar Babu, the predecessor of the defendants-opposite parties, was the recorded tenant having right, title and interest over the land in dispute. In order to meet the household expenses, Syamasundar Babu contacted the plaintiffs-petitioners to sell the suit land for a consideration of Rs.49,000/- and took an advance of Rs.35,000/- towards the consideration money and gave delivery of possession of the suit land to the plaintiffs-petitioners with a condition to accept the balance consideration money and execute the registered sale deed within three years. As a consequence, an agreement was also executed in favour of the plaintiff-petitioners on 27.08.1984. It is averred that after execution of such agreement, the plaintiffs-petitioners though on several times requested Syamasundar Babu to accept the balance consideration amount of Rs.14,000/- and to execute the registered sale deed, but Syamasundar Babu went on avoiding the request on some pretext or other. In the meantime, Syamasundar Babu died in the last week of January, 1988. As a result, the plaintiffs-petitioners approached the defendant-opposite parties, who are the legal heirs of Syamasundar Babu, unfortunately they also did not pay any heed to the request of the plaintiffs-petitioners, resulting the plaintiffs-petitioners to file Title Suit No.102 of 1989 in the Court of the Civil Judge (Senior Division), Sambalpur seeking a direction to execute and register the sale deed in respect of Schedule ‘A’ land after accepting balance consideration of Rs.14,000/- and on failure of which, permitting the plaintiffs-petitioners to deposit the balance consideration amount in the name of the defendants-opposite parties within a time frame and in the alternate, in the event it is held, Syamasundar Babu had no saleable interest or agreement becomes invalid or defective, the defendants-opposite parties be directed to refund the paid amount of Rs.35,000/- to the plaintiffs-petitioners. It was also requested therein for permanently restraining the defendants-opposite parties on the suit schedule land. 3. It was also requested therein for permanently restraining the defendants-opposite parties on the suit schedule land. 3. The defendants-opposite parties filed written statement admitting the title of Late Syamasundar Babu involving the suit land, but they have taken a plea that since the properties are ancestral properties, Syamasundar Babu had no exclusive saleable right, further the agreement relied on is a forged one and has been created by the plaintiffs-petitioners in connivance with the scribe and attesting witnesses in order to grab the suit properties. The trial court upon hearing the parties, considering the case materials after holding that Syamasundar Babu had executed the agreement for sale, signature of Syamasundar Babu in the agreement for sale remained genuine, the contract between the parties does not remain invalid and being satisfied with the claim of the plaintiffs-petitioners that the plaintiffs-petitioners were always ready and willing to perform their part of contract decreed the suit directing the defendants-opposite parties to execute the registered sale deed in favour of the plaintiffs-petitioners after accepting the balance consideration money of Rs.14,000/- within a period of one month, failing which the plaintiffs-petitioners are permitted to take shelter of the Court to get the sale deed executed. It further reveals that after disposal of the suit, the plaintiffs-petitioners sent an Advocate notice on 01.03.1995 within the time stipulated by the trial court to the defendants-opposite parties through courier service intimating them to accept Rs.14,000/- towards the part of the performance of contract and for execution of the sale deed as directed by the trial court. Finding no response, the plaintiffs-petitioners again sent a registered sale deed to the defendants-opposite parties on 14.03.1995 requesting for acceptance of money and executing and registering necessary deed. The plaintiffs-petitioners attempted through the Postmaster for conducting an enquiry as to whether notice issued to the defendants-opposite parties was served or not. On failure of response from the defendants-opposite parties to come forward to execute the sale deed, the plaintiffs-petitioners remain constrained to file a petition on 01.03.1996 in the trial court for execution of the decree and for a direction to the defendants-opposite parties to execute the sale deed by accepting the balance consideration along with a Civil challan of Rs.14,000/- in the Court. Finding no result on the above application of the plaintiffs-petitioners, the plaintiffs-petitioners on 22.04.1998 filed a petition in the trial court under Section 28(1) of the Specific Relief Act read with Sections 148 and 151 of the Code of Civil Procedure (for short “C.P.C.”) seeking extension of time to deposit the balance consideration amount in the Court with a further request for passing of the challan to facilitate the deposit. In the meantime, the defendants-opposite parties making confusing reading of the judgment and decree, deposited a sum of Rs.35,000/- in the trial court and filed a petition praying therein to rectify the decree by directing the plaintiffs-petitioners to restore delivery of possession of the suit land in favour of the defendants-opposite parties on acceptance of a sum of Rs.35,000/- on the premises of plaintiffs-petitioners’ failure in working out the conditions imposed by the trial court. The trial court on hearing the parties, for allowing the suit in favour of the plaintiffs-petitioners and in absence of any counter claim at the instance of the defendants-opposite parties while rejecting the application at the instance of the defendants-opposite parties allowed the application of the plaintiffs-petitioners to deposit the balance consideration amount by granting one month time by a separate order dated 19.04.2000. Being aggrieved by allowing of the application of the plaintiffs-petitioners by order dated 19.04.2000, the defendant nos.2, 4 and 5, the present opposite party nos.1, 2 and 3 preferred Civil Revision No.16 of 2000 in the Court of the District Judge, Sambalpur. The said revision was allowed on contest by reversing the order of the trial court granting extension of time in favour of the plaintiffs-petitioners for deposit of the balance amount. Similarly, in another revision vide Civil Revision No.17 of 2000, the defendant nos.2, 4 and 5 challenged the other order dated 19.04.2000, i.e., rejection of the application at the instance of these defendants by the trial court which revision has been dismissed by the learned District Judge, Sambalpur. Hence, this writ petition involving the order dated 19.04.2000 allowing time to the plaintiffs-petitioners to pay the balance consideration amount and the order passed in the revision involving Civil Revision No.16 of 2000 appearing at Annexure-7. Hence, this writ petition involving the order dated 19.04.2000 allowing time to the plaintiffs-petitioners to pay the balance consideration amount and the order passed in the revision involving Civil Revision No.16 of 2000 appearing at Annexure-7. It may be mentioned here that there is no challenge to the other order dated 19.04.2000 passed by the trial court rejecting the application at the instance of the defendant nos.2, 4 and 5 and the confirmation of the same by the revisional court in deciding Civil Revision No.17 of 2000. 4. Challenging the order involved in Civil Revision No.16 of 2000 involving allowing the plaintiffs-petitioners asking time to deposit the balance consideration money to get the sale deed executed by the defendants-opposite parties, Shri N.K. Sahu, learned counsel appearing for the plaintiffs-petitioners contended that there is serious error of law committed by the learned District Judge, Sambalpur in allowing Civil Revision no.16 of 2000 in clear defiance of the settled position of law that the decree in suit for specific performance of contract for sale fixing time for payment of balance money is in the nature of a preliminary decree and, therefore, the Court has the power to extend the time fixed by the trial court in the disposal of a suit. Further, for no attachment of the condition that the decree shall fail in absence of deposit of the amount by the plaintiffs-petitioners, Shri Sahu, learned counsel appearing for the plaintiffs-petitioners contended that the revisional court failed in appreciating this aspect of the matter and thus has arrived in the wrong and illegal impugned order. Shri Sahu, learned counsel for the plaintiffs-petitioners further submitted that for the plaintiffs-petitioners’ repeated attempt with the defendants-opposite parties to accept the money and to come forward for execution of the sale deed and on failure on the part of the defendants-opposite parties to respond to the same, further in absence of any specific condition directing the plaintiffs-petitioners to deposit the amount within a time frame, Shri Sahu thus contended that the revisional order is otherwise bad in law. It is also contended by Shri Sahu, learned counsel appearing for the plaintiffs-petitioners that for the rider to the plaintiffs-petitioners by virtue of the decree with liberty to the plaintiffs-petitioners to take shelter of the Court to get the sale deed executed, there was no infirmity in the trial court’s order permitting the plaintiffs-petitioners to deposit the balance consideration money to facilitate execution of sale deed at the instance of the Court in terms of the provisions of the Specific Relief Act. The findings of the lower court being based on presumptions, the impugned order becomes bad in law. 5. Shri S.P. Mishra, learned senior counsel appearing for opposite party no.3, the defendant no.5 in the Court below, on reiteration of the facts involving the case already narrated hereinabove and the stand of the defendant no.3 although, submitted that the claim of the plaintiffs-petitioners that notice claimed to have been sent by the plaintiffs-petitioners to the defendants-opposite parties by registered post since did not have the indication of the PO and PS involving the defendants-opposite parties, the notice appears therein was not in proper address. Shri S.P. Mishra, learned senior counsel appearing for opposite party no.3 further on the premises that since there was no response by the Postmaster to the query of the plaintiffs-petitioners regarding service of the notice on the defendants-opposite parties, submitted that the claim of the plaintiffs-petitioners on the service of notice on the defendants-opposite parties remain false. Further, for the application under Section 28(1) of the Specific Relief Act read with Sections 148 and 151 of CPC being filed after more than three years from the date of judgment and decree passed in the suit, the application at the instance of the plaintiffs-petitioners was also not competent and, therefore, there has been a right decision by the revisional Court. Shri Mishra, further submitted that even assuming that there was an application for extension of time, but the plaintiffs-petitioners having not pursued the said application, the attempt of the plaintiffs-petitioners was not genuine as the fact remains that the plaintiffs-petitioners only pursued application filed on 22.04.1995. Shri Mishra, further submitted that even assuming that there was an application for extension of time, but the plaintiffs-petitioners having not pursued the said application, the attempt of the plaintiffs-petitioners was not genuine as the fact remains that the plaintiffs-petitioners only pursued application filed on 22.04.1995. Though Shri Mishra, learned senior counsel appearing for opposite party no.3 attempted to bring the merit involving the application at the instance of the defendant-opposite party no.3, this Court finds no scope for entertaining such argument, as it appears, the defendants-opposite parties have abandoned their such claim on rejection of their revision vide Civil Revision no.17 of 2000 which is now a closed chapter. Referring to some decisions of the Hon’ble Apex Court in the cases of V.S. Palanichamy Chettiar Firm vrs. C. Alagappan and another, reported in AIR 1999 S.C. 918 and C.C. Alavi Haji vrs. Palapetty Muhammed and another, reported in (2007) 6 SCC 555 and also a decision of the Calcutta High Court in the case of Bhutnath Das and others vrs. Sahadeb Chandra Panja, reported in AIR 1962 Calcutta 485 (V. 49 C 102), Shri Mishra, learned senior counsel appearing for opposite party no.3 on the pretext of support of the above decisions to his case submitted that there is no infirmity in the impugned order requiring interference of this Court in the same. 6. Considering the rival contentions of the parties, this Court for the detailed discussions already made hereinabove, without entering into the repetitions of the same, finds, the plaintiffs-petitioners filed the suit for the following reliefs :- “(a) A decree directing the defendants to execute and registered the sale deed in favour of the plaintiffs in respect of the schedule – A land after accepting the balance consideration of Rs.14,000/- within the time stipulated by the court. (b) Failing which the court be pleased to direct the plaintiffs to deposit the balance sale consideration of Rs.14,000/- in the name of the defendants within the time stipulated by the court. (c) In the alternative, if it is held that late Syamsundar Babu had no saleable interest or the agreement is invalid or defective, the defendants be directed to refund the sum of Rs.35,000/- to the plaintiffs. (d) the defendant be permanently restrained from entering upon the suit schedule land.” 7. (c) In the alternative, if it is held that late Syamsundar Babu had no saleable interest or the agreement is invalid or defective, the defendants be directed to refund the sum of Rs.35,000/- to the plaintiffs. (d) the defendant be permanently restrained from entering upon the suit schedule land.” 7. The trial court on disposal of Title Suit No.102 of 1989 as appearing at Annexure-1 passed the following order in the judgment; “The suit is decreed on contest against the defendants, but in the circumstances of the case without cost. The defendants are directed to execute the registered sale deed in favour of the plaintiffs in respect of the suit land after accepting the balance consideration of Rs.14,000/- within a period of one month hence, or else the defendants are directed to refund Rs.35,000/- to the plaintiffs within that period failing which the plaintiff is at liberty to take the shelter of the court to get the sale deed executed.” Reading of the relief sought for and the judgment and decree together, it clearly appears that the trial court while allowing the suit had the specific direction against the defendants-opposite parties to execute the registered sale deed in favour of the plaintiffs-petitioners in respect of the suit land after accepting the balance consideration of Rs.14,000/- within a period of one month hence. In the same judgment and decree, it also allowed the defendants-opposite parties to refund Rs.35,000/- to the plaintiffs-petitioners within that period, on failure of which, granted liberty to the plaintiffs-petitioners again to take shelter of the Court to get the sale deed executed. Thus, it further becomes clear that the trial court while directing the defendants-opposite parties to accept the balance consideration within time frame also permitted, on failure of acceptance of the balance consideration by the defendants-opposite parties, the plaintiffs-petitioners to have the liberty to take shelter of the Court to get the sale deed executed. It further becomes clear that so far as the acceptance of balance consideration as well as permission to the defendants-opposite parties to refund Rs.35,000/- to the plaintiffs-petitioners, both these conditions appear to have been within a specific time frame. It further becomes clear that so far as the acceptance of balance consideration as well as permission to the defendants-opposite parties to refund Rs.35,000/- to the plaintiffs-petitioners, both these conditions appear to have been within a specific time frame. The defendants-opposite parties’ request for amending the judgment and decree and permitting the defendants-opposite parties to deposit the amount within further time having been rejected by the trial court and confirmed by the revisional court and there being no challenge to the said order been abandoned by the defendants-opposite parties, the decree available for execution appears to be only in relation to the direction to the defendants-opposite parties accepting the amount or in the alternate to take shelter of Court to get the sale deed executed. It is under the circumstances, this Court examining the records and considering the submission of the respective parties, finds, as the first step the plaintiffs-petitioners in compliance of the judgment and decree involving the suit attempted through correspondences to the defendants-opposite parties not only sent a Courier Advocate notice on 01.03.1995 but also sent a notice through registered post to the defendants on 14.03.1995 inviting them to accept the amount in terms of the judgment and decree and enter into execution of the registered sale deed. To establish their such case, the plaintiffs-opposite parties have also filed necessary proof by accompanying the pleader notice, courier receipt on their attempt to send the notice through courier dated 01.03.1995 and also the registered postal slips. This Court finds, there is no denial to these aspects except some of the defendants restricted to defendant no.3 in the writ petition taking an objection that for no certification of service of notice and further no conformity in the address of the defendants with the address available in the registered post, the notice, if any, cannot be treated to be sufficient. This Court finds, the plaintiffs-petitioners have amply satisfied that in spite of there being no time stipulation for making their offer to the defendants showing their ready and willingness to go ahead with the registration of the registered sale deed and further finding the provisions of Section 27 of the General Clauses Act in the matter of treating the sufficiency of notice by way of registered post for non-return of the materials sent to the addressee or the A.D. within one month, this Court finds, notice to the defendants-opposite parties remain sufficient. Further, perusal of the pleadings in the brief as well as the submission of the respective parties, this Court also finds, the plaintiffs-petitioners in filing the application under Section 28(1) of the Specific Relief Act read with Sections 148 and 151 of CPC available at Annexure-5 to the brief at hand, in paragraph-5 have a categorical mentioning that before filing of the petition vide Annexure-5, the plaintiffs-petitioners had an attempt to the Court by filing a petition on 01.03.1996, i.e., within one year of the decree, this Court finds, plea of Shri S.P. Mishra, learned senior counsel appearing for opposite party no.3 that the plaintiffs-petitioners’ attempt having been taken after long lapse of time of the judgment and decree, is not sustainable in the eye of law. Perusing the revisional impugned order, this Court finds, the revisional court while considering the case of the parties involving the impugned order therein, failed in appreciating the directive of the trial court in the judgment and decree involving the suit. When the record reveals, the judgment involving the suit was passed on 24.02.1995 permitting the defendants-opposite parties to deposit the amount within two months, i.e., for acceptance of the balance consideration within one month and for depositing the amount within a month further, after the lapse of the first month and the permission for amendment of the decree having been rejected by the trial court and being confirmed in dismissal of the Civil Revision No.17 of 2000, the relief granted in favour of the defendants-opposite parties entitling them to deposit the part consideration money got automatically extinguished. It appears that the revisional court failed to appreciate the above aspect of the matter and, therefore, has arrived in the wrong and illegal impugned order which is sustainable in the eye of law otherwise. 8. It appears that the revisional court failed to appreciate the above aspect of the matter and, therefore, has arrived in the wrong and illegal impugned order which is sustainable in the eye of law otherwise. 8. Now, coming to consider the citations cited by both the sides. On perusal of the citations shown by Shri S.P. Mishra, learned senior counsel appearing for opposite party no.3, reading the decision of the Hon’ble Apex Court in the case of V.S. Palanichamy Chettiar Firm (supra), this Court finds, the Hon’ble Apex Court rejected the request for deposit of the balance consideration having been made after five years after the decree and three years after dismissal of the appeal by the High Court was declined. The case at hand reveals, though there was no time stipulation for asking the plaintiffs-petitioners to deposit the balance consideration amount and further since the application seeking permission to deposit having been filed approximately within one year of the decree, this Court holds, this decision rather supports the case of the plaintiffs-petitioners. So far as decision of the Calcutta High Court in the case of Bhutnath Das (supra) is concerned, the case involved therein seeking extension of time for deposit of money on failure of deposit of the money within time framed by the Court decreed. This is not the case involving herein, as such, the above decision has no application to the case at hand. Similarly, for the different facts and situation and particularly for the observations of this Court regarding sufficiency of notice on the defendants, as narrated hereinabove, the decision of the Apex Court in the case of C.C. Alavi Haji (supra) also does not support the stand of Shri S.P. Mishra, learned senior counsel appearing for opposite party no.3. 9. So far as citations cited at Bar at the instance of the learned counsel appearing for the petitioners, this Court finds, the plaintiffs-petitioners have the support of all the decisions of the Hon’ble Apex Court in the cases of K. Kalpana Saraswathi vrs. P.S.S. Somasundaram Chettiar, reported in AIR 1980 S.C. 512 , V.S. Palanichamy Chettiar Firm vrs. C. Alagappan and another, reported in (1999) 4 SCC 702 and Kumar Dhirendra Mullick and others vrs. Tivoli Park Apartments (P) Ltd., reported in (2005) 9 SCC 262 as well. 10. P.S.S. Somasundaram Chettiar, reported in AIR 1980 S.C. 512 , V.S. Palanichamy Chettiar Firm vrs. C. Alagappan and another, reported in (1999) 4 SCC 702 and Kumar Dhirendra Mullick and others vrs. Tivoli Park Apartments (P) Ltd., reported in (2005) 9 SCC 262 as well. 10. Under the circumstances and for the support of the decisions cited on behalf of the plaintiffs-petitioners to the case of the plaintiffs-petitioners, this Court finds the revisional order at Annexure-7 not sustainable. Therefore, this Court while interfering in the revisional order at Annexure-7 and setting-aside the same, confirms the order passed by the trial court dated 19.04.2000 so far it relates to plaintiffs-petitioners seeking enhancement of time for deposit of the balance consideration amount. As a consequence and as the order dated 19.04.2000 could not be complied in the meantime for the pendency of the present litigation, this Court grants the plaintiffs-petitioners one month hence to comply with the decree. 11. The writ petition thus succeeds. In the circumstances, however, there will be no order as to costs.