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2022 DIGILAW 1318 (AP)

Nallagatchu Raja Babu, S/o. Bhogeswara Rao v. Pothinaboyina Fhakirayya, S/o. Late Gopala Swamy

2022-11-17

SUBBA REDDY SATTI

body2022
ORDER : Plaintiffs in the suit filed above revision aggrieved by the common order dated 20.01.2020 in I.A.Nos.35, 36 and 37 of 2020 in O.S.No.38 of 2013 on the file of the Court of the XV Additional District Judge, Krishna District at Nuzvid 2. Plaintiffs filed suit O.S.No.38 of 2013 for specific performance of agreement of sale and put the plaintiffs in the possession of the property or alternatively for refund of amount of Rs.22,93,000/- with interest at 24% per annum on Rs.15,00,000/- from the date of suit till the date of realization with a charge over the suit schedule property. Suit schedule property is an extent of Ac.3.50 cents in S.No.20/2 of Kadimpotharam Village, Pinapaka Grama Panchayat, G.Konduru Mandal, Krishna District. 3. In the plaint, it was contended interalia that defendants 1 to 9 are having an extent of Ac.1.16 cents; defendants 10 to 21 are having Ac.1.08 cents and defendants 22 to 27 are having Ac.1.08 cents, totaling Ac. 3.05 cents in S.No.20 of Kadimpotharam Village, Pinapaka Grama Panchayat, G.Konduru Mandal, Krishna District. All the defendants offered to sell suit schedule property at Rs.16,75,000/- per acre; that an agreement of sale was executed on 09.03.2001; that Rs.3,00,000/- was paid towards advance; that plaintiff paid an amount of Rs.12,00,000/- on 01.04.2011 and all the defendants acknowledged; that defendants have to furnish FMB and copy of schedule land within three months from the date part payment and get the land surveyed by the surveyor in the presence of adjacent boundary owners by 01.04.2011 etc.; that if plaintiffs failed to get the registration they have to pay 24% per annum towards interest on remaining balance and if the defendants did not come forward with the documents they have to 24% per annum on the amount paid by the plaintiffs; that plaintiffs got issued legal notice dated 06.08.2011; that defendants got issued a reply dated 16.08.2001; that plaintiffs got issued rejoinder on 24.04.2013 and hence filed the suit. 4. 1st Defendant filed written statement and contended interalia that defendants are ready and willing to register the land as and when required and in fact, they send reply; that plaintiffs issued another notice; that plaintiffs are required to pay remaining sale consideration of Rs.43,62,500/- with interest and eventually prayed the Court to dismiss the suit. 5. 4. 1st Defendant filed written statement and contended interalia that defendants are ready and willing to register the land as and when required and in fact, they send reply; that plaintiffs issued another notice; that plaintiffs are required to pay remaining sale consideration of Rs.43,62,500/- with interest and eventually prayed the Court to dismiss the suit. 5. After completion of trial, when the suit is coming up for arguments, plaintiffs filed I.A.No.35 of 2020 under Section 151 of CPC to reopen the case; I.A.No.36 of 2020 under Order XVIII Rule 17 & Section 151 CPC to recall P.W.1 for making documents and I.A.No.37 of 2020 under Order VII Rule 14 of CPC to receive list mentioned documents. 6. In the affidavit filed in support of the petitions to receive documents, to reopen and recall the witness, it was contended that at the time of cross examination of D.Ws.1 and 2, counsel for the plaintiffs confronted the document i.e. notification pertaining to construction of 400 KV VTPS to Suryapet, Malakaram, Double Circuit Line, but they gave vague answers; that subsequently, plaintiffs obtained those documents under Right to Information Act; that defendants put forth their evidence that subsequent to agreement dated 09.03.2011, the A.P Transco, GDL, Vijayawada constructed 400 KV VTPS to Suryapet, Malakaram, Double Circuit Line; that in fact A.P Transco, GDL, Vijayawada constructed 400 KV VTPS to Suryapet, Malakaram, Double Circuit Line from 11.07.2007 onwards; that the Gazette notification itself is evidencing the construction, that I.A.Nos.229, 230 and 241 of 2019 filed to reopen the suit, for summoning the witness and for marking the documents were dismissed on 04.12.2019 and hence, after getting the documents under Right to Information Act, the present applications were filed. 7. Respondents filed counter opposing the application. In the counter it was contended interalia that respondents are not disputing passing of electrical wires from the plaint schedule property; that the schedule land is an agricultural land; that it is neither the case of plaintiffs that the subject matter is frustrated due to passing of electrical wires through the agricultural land nor respondents are performing their part of contract contrary to the contract and thus, prayed the Court to dismiss the petitions. 8. Trial Court by a common order dated 20.01.2020 dismissed the applications. Aggrieved by the dismissal of the application, the present revisions are filed. 9. Sri Anil Kumar. 8. Trial Court by a common order dated 20.01.2020 dismissed the applications. Aggrieved by the dismissal of the application, the present revisions are filed. 9. Sri Anil Kumar. D, learned counsel for petitioners would submit that petitioners have shown sufficient reason to receive the documents, which are necessary for effective adjudication of the dispute between the parties. He also would submit that proposed documents are necessary to prove the conduct of defendants, since the suit being for specific performance and thus, prayed to interfere with the common order of the Court below. 10. Sri Yallabandi Ramatirtha, learned counsel for respondents would submit that there is no averment in the plaint regarding the proposed documents and hence, they are not necessary to decide the dispute between the parties. He also would submit that suit is coming for arguments from the year 2019 onwards and without advancing arguments, plaintiffs keep on filing interlocutory applications to drag the proceedings and thus, prayed to dismiss the revisions. 11. In the light of above contentions, the point that arose for consideration is: Whether the plaintiffs showed bonafide reason to receive the documents? 12. Suit O.S.No.38 of 2013 was filed by plaintiffs seeking specific performance of agreement of sale dated 09.03.2011 or alternatively for refund of amount with interest. A plain reading of the plaint would indicate that agreement of sale was entered into between the plaintiffs and defendants on 09.03.2011 for a total extent of Ac.3.50 cents in S.No.20 of Kadimpotaram village; that consideration fixed is Rs.16,75,000/- per acre; that out of total sale consideration, plaintiffs paid Rs.3,00,000/- on the date of agreement of sale and thereafter paid Rs.12,00,000/- on 01.04.2011; that plaintiffs issued legal notice to defendants on 06.08.2011, for which defendants sent a reply on 16.08.2011 agreeing to execute registered sale deed on payment of balance of sale consideration; that plaintiffs issued reply notice on 24.04.2013 and filed the suit. 13. Defendants in the written statement showed their ready and willingness to execute registered sale deed in favour of the plaintiffs, provided that plaintiffs pay the balance of sale consideration with interest. 14. As observed supra, the plaint does not indicate that the contract is being delayed due to passing of electrical wires. 13. Defendants in the written statement showed their ready and willingness to execute registered sale deed in favour of the plaintiffs, provided that plaintiffs pay the balance of sale consideration with interest. 14. As observed supra, the plaint does not indicate that the contract is being delayed due to passing of electrical wires. According to the plaintiffs, defendants have to produce FMB and copy of schedule land within three months from the date part payment i.e. 01.04.2011 and get the land surveyed by the surveyor in the presence of adjacent boundary owners; that legal notice dated 06.08.2011 was issued by plaintiffs calling upon defendants to execute registered sale deed; in turn defendants sent a reply notice on 16.08.2011 showing their interest to perform their part of contract, however plaintiffs sent a reply on 24.04.2013 and filed the suit. By filing written statement also, defendants expressed their ready and willingness to execute registered sale deed, if the plaintiffs pay balance sale consideration with interest. 15. As contended by learned counsel for respondents that neither in the plaint nor in the legal notice, plaintiffs have asserted regarding passing of electrical wires through schedule land and thus, the contract is frustrated or being delayed. The agreement of sale is dated 09.03.2011 and the proposed electrification was commenced, as per the affidavit filed by plaintiffs, is from the year 2007 onwards, which is much prior to entering into contract. The plaintiffs, without pleading, put suggestions to witnesses and to cover up those suggestions, plaintiffs now sought for marking the proposed documents without any pleading in the plaint and such a course is not permissible. In fact, as observed by the trial Court, when the interlocutory applications were filed in the year 2019, they were dismissed on merits by considering Ex.A-3 and evidence of P.Ws.1 and 2. Suit is coming for arguments from the year 2019 onwards and the plaintiffs filed the applications only to drag on the proceedings further. Hence, the order of the trial Court does not suffer from any illegality. Hence, it does not warrant any interference of this Court. 16. The scope of revision under Article 227 of the Constitution of India was considered by Hon’ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 . The order of the lower is neither perverse nor amounts to failure to exercise jurisdiction vested with it. 16. The scope of revision under Article 227 of the Constitution of India was considered by Hon’ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 . The order of the lower is neither perverse nor amounts to failure to exercise jurisdiction vested with it. Hence, the order of the trial Court dismissing the petition does not call for interference of this Court under Article 227 of the Constitution of India. 17. Accordingly, the Civil Revision Petitions are dismissed at the admission stage. No order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.