IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE CITY CIVIL
COURT: AT HYDERABAD
MONDAY, THIS THE 15 th DAY OF APRIL, 2019
PRESENT: SRI K. PATTABHI RAMA RAO,
XXV ADDITIONAL CHIEF JUDGE
Appeal Suit No.41 of 2015
Between:
S.M.Ibrahim Ali Khan, S/o.Late Sri.S.M.Mirza Ali Khan, aged about 52 years, Occupation : Business, R/o.Plot No.210, First floor, Telecom Nagar Extension, Gachibowli, Hyderabad, Telangana.
….Appellant/Plaintiff.
AND
1 P.Chandrasekhar Rao@ Shankar Rao, S/o.Late Sri Veeraiah Chowdary, adult R/o.323, Sahebnagar, Vanasthalipuram, Hyderabad, Telangana (Died per L.Rs., 2 & 3) 2 Smt.P.Tulasidevi, W/o.Late P.Chandrasekhar Rao, @ Shankar Rao, aged about 62 years, Occupation : Household, R/o.323, Sahebnagar, Vanasthalipuram, Ranga Reddy District.
3 Sri.P.Madhava Chowdary, S/o.W/o.Late P.Chandrasekhar Rao @ Shankar Rao, aged about 43 years, Occupation : Employee, R/o.323, Saheb Nagar, Vanasthalipuram, Ranga Reddy District.
...Respondents/Defendants.
This appeal suit is coming on 08.04.2019 before me for final hearing in the presence of Sri.A.Venkatesh, Advocate for the appellant/plaintiff and the respondents 2 and 3 are set exparte and upon hearing the counsel for appellant/plaintiff and on perusing the material available on record and the matter having stood over for consideration till this day, the Court delivered the following:
J U D G M E N T
The appeal is filed by the unsuccessful plaintiff in
O.S.No.1125/1997 against the judgment and decree of the learned IX
Senior Civil Judge, City Civil Court, Hyderabad dated 31.12.2014.
2.For convenience sake, the parties to the appeal are hereinafter referred to as per their ranks in the trial Court.
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3.The suit is filed for the relief of Specific Performance of
Agreement for sale in respect of the plaint schedule mentioned property by the defendants.
4.The plaint schedule mentioned property is plot of land measuring 1520 Sq.yds of site in Somajiguda of Hyderabad. The suit was originally filed against the 1st defendant and defendant No.2 and defendant No.3 are impleaded during the pendency of the suit after demise of defendant No.1. Defendant No.2 and defendant No.3 are daughter and son of defendant No.1 respectively. It is the case of the plaintiff that one Kosaraju Kamalamma was the absolute owner of the suit property and she has offered to sell the same to the plaintiff for
Rs.3,50,000/ and plaintiff has paid an amount of Rs.1,00,000/ towards sale consideration by way of two demand drafts and the said
Kamalamma has executed Special Power of Attorney on 16.06.1994 in favour of the plaintiff authorizing him to obtain all permissions from all the departments concerned. It is further stated that in July 1992 some prospective purchasers have approached the plaintiff and plaintiff agreed to the terms to sell the suit property and he has approached the said Kamalamma to receive the balance of sale consideration and executed the registered Sale Deed as per the terms of the agreement
dated 16.06.1994. It is further stated that despite several requests the
said Kamalamma for execution of the registered sale deed, she has not agreed for the same and she has also got issued a notice stating that the plaintiff has no right to enter into agreements with third parties. It is further stated that the said Kamalamma executed a registered Will
dated 25.07.1996 bequeathing the suit property in favour of the 1st
defendant and she died on 13.08.1996 and defendant No.1 after the
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death of Kamalamma the plaintiff has asked the 1st defendant to execute the sale deed after making efforts, it is stated that the plaintiff got issued a notice on 11.06.1997 and the 1st defendant did not give reply and did not cooperate for the execution of the registered Sale deed and therefore the plaintiff has filed the suit seeking for the relief of
Specific Performance.
5.The 1st defendant filed the written statement denying the liability to execute the registered sale deed. Defendant No.1 has admitted the execution of the agreement by Kosaraju Kamalamma and receiving of earnest money of Rs.1,00,000/. The 1st defendant however has stated that the Special Power of Attorney i.e., the plaintiff was not having any power to transfer, mortgage or alienate the suit property in favour of the third party and according to the suit agreement the plaintiff has to complete the sale transaction within a period of three months from the date and the balance of the sale consideration shall be paid within the three months and it is stipulated that if the plaintiff fails to pay the balance within a period of three months the interest shall be paid @ 24% per annum. It is stated that the plaintiff has never approached the said Kamalamma during her lifetime for payment of balance sale consideration and during the last days Kamalamma has requested the plaintiff to pay the balance sale consideration as per the terms of agreement for sale but the plaintiff has not paid even a single rupee. It is further stated that the plaintiff did not approach the 1st defendant and did not offer to pay the balance of sale consideration and the plaintiff was not ready and willing to perform his part of the contract.
It is stated that the 1st defendant did not receive any notice and even, if it is assumed to be proved that the 1st defendant was got issued a notice
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according to the contents of the plaint the notice is said to have been issued on 11.06.1997 and the suit was filed on 13.06.1999. With the above averments the 1st defendant sought for dismissal of the suit. After impleading the defendants No.2 and 3 as parties, defendant No.2 has filed the additional written statement and according to the additional written statement, the property originally belong to one K. Venkat
Subbaiah, who died and Kamalamma succeeded to the said property.
According to the 2nd defendant one M.A. Jabbar has filed a suit for declaration and injunction against Kamalamma during her lifetime in
O.S.No.93/1992 and the same was decreed on 14.10.2003 and
subsequently an appeal in A.S.No.30/2005 was preferred against the
Judgment and the said appeal was allowed. It is further stated that in order to avoid further litigation Jabbar, and his mother entered into a compromise on 12.10.2006 and in the said compromise Jabbar and his mother got 959 sq.yds and remaining 627 sq.yds was given to 2nd defendant. It is further stated that the suit was filed against the 2nd defendant and the same was dismissed for default. According to the 2nd defendant she has sold the suit property to one Vajranath under
Agreement cum GPA dated 06.10.2006. It is also contended by the 1st defendant that the plaintiff was aware of the sale which was made to
Vajranath as the said Vajranath filed petition to implead himself in the suit which was dismissed. It is further stated that the alleged agreement of sale executed in favour of the plaintiff was sham and as the litigation was pending, Kamalamma has allowed the plaintiff to look after the matter and execute the agreement. It is further stated it is only after the death of Kamalamma the plaintiff has filed this suit and even by the year 1996 the cost of the property was Rs.20,00,000/ (Rupees
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Twenty lakhs only) under consideration under the suit agreement was quite low and it shows that agreement is nominal. With such contentions the 2nd defendant sought for dismissal of the suit. It is pertinent to mention that the written statement filed by the defendant
No.2 was signed by one Vajranath who is said to be the purchaser of the suit property from defendant No.2. Indeed Vajranath has filed application in I.A.No.183/2008 for filing the written statement and it was dismissed and after dismissal of the said petition after filing another application I.A.No.301/2008 seeking leave for filing the
additional written statement, defendant No.2 has filed the additional
written statement, Which was signed by Vajranath.
6.A rejoinder was filed by the plaintiff denying the contentions of the defendant No.2. In the rejoinder it is stated that Vajranath is a transferee pendilite and he cannot be permitted to circumvent the consequences of illegal transfer. It is stated that once the application for impleading Vajranath was dismissed the defendant No.2 shall not be permitted to file the additional written statement. In the rejoinder the plaintiff has denied the case set up by defendant No.2 in her written statement signed by Vajranath.
7.The following issues are framed by the trial Court : 1Whether the plaintiff is entitled for Specific Performance of contract of suit schedule property?
2To what relief?
Additional Issue
Whether the plaintiff has been diligent in seeking Specific Performance of agreement of sale deed dated 16.06.1994?
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8.The learned trial Court judge has considered the evidence on record and came to the conclusion that the plaintiff is not entitled for the relief sought for and found that the agreement dated 16.06.1994 said to have been executed by Kamalamma in favour of the plaintiff is illegal not tenable and the plaintiff has been aware of the dispute between Kamalamma and Jabbar and others which is subject matter of
O.S.No.92/1993. The trial Court Judge observed that the court cannot
exercise the discretion to grant the relief of Specific Performance as the property was sold to Vajranath during the interregnum period when the suit was in the status of dismissal for default. The trial Court has considered the evidence and arguments of both sides extensively.
9.The plaintiff examined himself as PW1 and Ex.A1 to Ex.A9 are marked on behalf of the plaintiff. Whereas, Vajranath gave evidence as
DW1 and Ex.B1 and Ex.B2 are marked on behalf of the defendant.
10.The learned counsel for the appellant contends that the liability of defendants No.2 and 3 to execute the sale deed in favour of the plaintiff is subsisting and they are bound to execute the registered sale deed.
11.Respondents No.2 and 3 were set exparte in this appeal. The learned counsel for the appellant contends that since respondent No.2 and respondent No.3 were set exparte the appeal is to be allowed. The appeal was heard exparte. However, the court is under obligation to find out whether the appellant could establish and substantiate a case for reversing the judgment and decree of the trial Court. I have gone through the evidence of PW1. PW1 S.M.Ibrahim Ali Khan in his evidence has reiterated the contents of the plaint. During the cross examination PW1 has deposed that after execution of the agreement
dated 16.06.1994 he came to know that a suit is pending regarding the
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suit property and Kamalamma told him that she will settle the matter.
PW1 has also admitted that he has filed a petition to implead Ranga
Reddy, Subhash Rao, Mohd.Arif, Mohd. Jahangir and Mohd.Ghouse as defendants in the suit on the ground that they have purchased the property and the said I.A was dismissed. PW1 has admitted that as per the GPA executed by Kamalamma he was authorized to look after court matters and he has also admitted that he did not pay the balance of sale consideration during the lifetime of Kamalamma. He has denied the suggestion that he has not offered the balance sale consideration and did not issue notice to Kamalamma. He has also deposed that he has knowledge about sale of the property by M.A. Jabbar to Vajranath and Indumathi but he does not know whether the said Vajaranath sold the property to third parties. During further crossexamination, PW1 has deposed that he does not know the owner of the suit property and he does not know how many persons own the suit property on the date of his giving evidence. He has also admitted that the suit property was converted to flats and he does not know the number of flats that are existing in the suit property. Ex.A1 to Ex.A9 are the documents marked on his behalf. Ex.A1 and Ex.A2 are the documents admitted by the defendants though they contend that they are nominal documents and do not confer any rights on the suit property in favour of the plaintiff. Ex.A7 to Ex.A9 are filed by the plaintiff to show that he has financial capacity.
12.DW1 M.Vajranath has deposed in his examination in chief as per the contents of the written statement filed by defendant No.2 and signed by him. DW1 in his examination in chief has deposed that he is the GPA holder of defendant No.2 and defendant No.3 and defendant
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No.2 and defendant No.3 have authorized him. During the cross examination by the counsel for the plaintiff he has deposed that he was not instructed by the defendant in the suit to give evidence and he was not given GPA by defendant No.2 and defendant No.3 on 31.08.2007.
He has also admitted that he was not conferred any authority to represent defendant No.2 and defendant No.3 by the alleged GPA dated 31.8.2007. It is also admitted that he did not obtain any sale deed in his favour in respect of the suit property. Ex.B1 and Ex.B2 filed by him are the certified copies of the registered sale deeds under which the suit property was sold by DW1 and his wife under two separate sale deeds in their capacity as GPA.
13.As seen from the evidence it is clear that the suit property was sold to several people and defendant No.2 and defendant No.3 have lost their interest over the suit property as they have sold the same to DW1 and the evidence of DW1 also shows that he himself as the General
Power of Attorney through the owners of the property have alienated it in favour of third parties. Admittedly there is no vacant site as described in the plaint schedule and in its place there are flats. In this back drop the evidence on record and oral evidence of PW1 and DW1 has to be analyzed.
14. Its true that DW1 was not given proper authorization to represent defendants No.2 and 3 and the GPA said to have been executed by defendants No.2 and 3 is not filed before the court.
Therefore, at the outset it is to be clarified that DW1 is not authorized to represent defendant No.1 and defendant No.2 but was allowed to give evidence as DW1 in his individual capacity. A nonparty to the suit can be a witness and his evidence can be considered as far as the said
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evidence pertains to his personal knowledge. It is also proved that the written statement was signed by Vajranath and it is not signed by defendant No.2 or defendant No.3 and taken all these circumstances into consideration I am of the opinion that the court shall find out at first place, whether the plaintiff would be eligible for the relief claimed for even in the absence of a valid written statement by defendant No.2 and defendant No.3 and even without considering the evidence of DW1.
It is the duty of the plaintiff to prove the case and he has to adduce the evidence to satisfy the court that he is entitled for the relief claimed for, more particularly when the plaintiff has been claiming an equitable relief he is bound to prove that he has been acting fairly through out and his claim and conduct is blemishless. The trial Court has considered all the issues framed and dismissed the suit. However, the trial Court has ordered that the earnest money advanced by the plaintiff shall be returned by the defendants with interest at the rate of 12% per annum from the date of agreement till the date of realization. None of the defendants have filed any appeal/cross appeal against the findings of the trial Court regarding the return of the earnest money and the plaintiff has filed this appeal contending that :
01 The trial Court has failed to appreciate the evidence adduced by the plaintiff and wrongly interpreted the evidence of DW1.
02 The trial Court did not appreciate the fact that the defendants have suppressed material facts, such as, about the suit in O.S.93/1992.
03 The trial Court has wrongly considered the evidence of DW1, who is not a party to the suit and has ignored the contention that Vajranath has filed the written statement for D2 and D3 without any authority granted by D2 and D3. It is contended that the said Vajranath has no Locus Standi.
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04 The appellant contends that the trial Court has not considered the contents of the rejoinder filed by the plaintiff/appellant.
05 The appellant contends that that case of defendant No.1 as stated in her written statement is different from the case of D2 and D3 as stated in their written statement filed by Vajranath.
06 It is contended that except Ex.B1 and B2 the defendant has not filed any other documents.
07 The appellant has contended that the findings of the trial Court that there was a duty cast upon the plaintiff to implead subsequent purchasers of the suit schedule property.
08 It is alleged that the court has misread the ratio laid down in the case of Thomson Press (India) Limited Vs
Nanak Builders and Investors Private Limited
reported in AIR 2013 SC 2389.
09 The appellant contends that in a suit for the relief of Specific Performance adding of Smt.Sajeeda Begum and M.A.Jabbar as parties to the suit is not necessary.
10 It is contended that the alleged compromise between M.A.Jabbar and the defendant in O.S.No.93/1992 is illegal and entered into only to deprive the right of the appellant, the said compromise was arrived at. It is alleged that the said compromise was, even if it were to be assumed to be true, is unfair. The contention of the appellant is that the said suit itself is collusive suit.
11It is contended that the findings of the trial Court that the plaintiff has not initiated any steps for Specific Performance of agreement during the life time of Kosaraju Kamalamma is incorrect and against the evidence adduced by the plaintiff.
12 The appellant contends that the findings of the trial Court that “the diligence of PW1 in respect of her readiness appears to be much desired and not taking effective steps for impleading the plaintiff in O.S.No.92/1993”, is incorrect.
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13 The appellant contends that the trial Court has wrongly relied upon procedure, which have no relevance to the facts of the case.
14 The appellant further contends that the findings of the trial Court that “additional written statement has been filed long back only under the signature of GPA holder and not in the capacity of GPA holder of D2 and D3 filing necessary GPA” is too rigid.
15 The appellant further contends that the suit in
O.S.No.92/1993 was filed claiming declaration of title in
respect of part of the property, where as, the present suit was filed for the relief of Specific Performance of agreement of sale in respect of entire property and even if the plaintiffs in O.S.No.92/1993 succeed in the litigation, the appellant/plaintiff here in has every right to take steps against the defendants and if the defendants succeed in the litigation, the appellant would get his due fruits.
16 It is further contended that DW1 has no knowledge at all about the suit transaction as per his own evidence and when such is the case, basing on the evidence of DW1, the court cannot dismiss the suit.
17 The appellant further contends that when D2 and D3 did not enter into witness box and in the absence of their evidence, the pleadings of the trial Court shall be discarded.
18 Another contention of the appellant is that the trial Court has over emphasized the dismissal of the suit of defendant on 28.06.2004.
15.The above are the important grounds on which the appellants seeks for setting aside the said Judgment and decree of the trial Court.
After hearing the counsel for the appellant in order to decide this appeal, the following points are framed for consideration.
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1 Whether the findings of the trial Court that the agreement for sale dated 16.06.1994 is legally not tenable is incorrect?
2 Whether the plaintiff could establish that he is entitled for the relief of Specific Performance of agreement of sale?
3 Whether the Judgment of the trial Court, dismissing the suit, needs to be interferred?
16.Point No.1 :
One of the grounds, on which, the suit was dismissed is that the
Ex.A1 agreement is not legally tenable. The learned trial Judge has considered that the earlier agreement dated 09.08.1988 between the executant of Ex.A1 and one Bommidi Ranga Reddy and Mohd Arif is not cancelled and without cancelling the said agreement Ex.A1 is illegal and untenable. There is no dispute regarding the execution of Ex.A1. The learned trial Judge has dealt with these aspects in paragraphs 37 to 39 of the Judgment. The Court has observed that Ex.A1 becomes legally untenable as the earlier agreement between Bommidi Ranga Reddy and
Kosaraju Kamalamma remained uncancelled. It is true that there is a mention of the agreement between one Bommidi Ranga Reddy and
Mohd Arif and execution of Ex.A1 in the agreement itself in the following terms : “Where as the vendor Kosaraju Kamalamma has executed an agreement of sale on 09.08.1988 in respect of the schedule property in favour of one Bommidi Ranga Reddy, S/o.Sati Reddy and Sri Mohd.
Arif, S/o.Moh.Sattar Chand;
Whereas, the said Bommidi Ranga Reddy and Mohd. Arif requested the vendor to cancel the said agreement and executed this agreement in the name of the purchaser (plaintiff) as they could not
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fulfill the terms and conditions of the said agreement, for which, the vendor agreed.”
17.The above portion of the agreement under Ex.A1 shows that there was an agreement prior to Ex.A1 in respect of the suit property. Neither
Bommidi Ranga Reddy nor Mohd Arif are parties to Ex.A1. It is not known whether the above said two persons have expressly consented for cancellation of the agreement dated 09.08.1988 referred to above. It is not known whether the plaintiff has obtained the above said agreement from Bommidi Ranga Reddy and Mohd. Arif and it is not filed. However, it appears that the said Ranga Reddy and Arif have appended their signatures in Ex.A1 as witness No.2 and 3 as appeared in the last page of Ex.A1. Therefore, though express consent of the above two persons is not proved, their knowledge of Ex.A1 can be easily inferred. The signature of Bommidi Ranga Reddy and Mohd. Arif in
Ex.A1 show that they have knowledge of Ex.A1 and they have not approached the court for impleading them in the suit and taking all the circumstances into consideration, I am of the opinion that the agreement dated 09.08.1988 stated in Ex.A1 is deemed to have been cancelled, though it not expressed in clear terms in Ex.A1. Even if it is not cancelled, it shall be inferred that both the said persons have abandoned their rights arisen out of the agreement dated 09081988.
In these circumstances, the court cannot consider that Ex.A1 becomes legally untenable on the ground that the agreement dated 09.08.1988 between Kosaraju Kamalamma and Bommidi Ranga Reddy and Mohd.
Arif is not cancelled. The finding of the trial Court on this aspect as stated in paragraph No.37 to 39 of the Judgment is incorrect and
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illogical. Point No.1 is answered in favour of the appellant and against the respondent.
18. Point No.2 :
The trial Court has dismissed the suit for more then one reason.
Though point No.1 is answered against the respondents, it is to be noted that the trial Court has found that the plaintiff was aware of the
Title dispute between Kosaraju Kamalamma and Sajida Begum and
Mohd Jabbar, who are parties in O.S.No.92/1993 on the file of V Senior
Civil Judge, City Civil Court, Hyderabad. The trial Judge has considered
these aspects in Paragraph No.22 to 28 of the impugned judgment. The suit in O.S.No.93/1992 was filed by M.A.Jabbar and others against D1 herein and against the Judgment in the said suit A.S.No.30/2005 was filed. The petitioner herein filed I.A.No.782/2003 in O.S.No.93/1992 to implead himself in the said suit and it was dismissed. The plaintiff later did not take any effective steps to implead them in the suit. The Plaintiff in the rejoinder also has stated about the facts but he did not take any effective steps to implead them as parties to the suit. The plaintiff’s contention in the suit as well as in this appeal is that the compromise between M.A.Jabbar, Sajida Begum and the defendants is illegal. In the said compromise M.A.Jabbar, Sajida Begum got 959 Sq.yards, whereas, the remaining 627 Sq.yards of the site was sold to DW1 in this case. D1 and D2 have also sold certain exrtent out of the said property to one
Ms.D.Bhargavi. After considering all the above facts, the court has observed that M.A.Jabbar and Sajida Begum could have been impleaded as parties to the suit and they are proper and necessary parties to the suit.
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19.The evidence of PW1 makes it categorical that the plaintiff got knowledge of the suit in O.S.No.93/1992 and A.S.No.30/2005 under compromise. In fact, the plaintiff made a vein attempt to get himself impleaded in the said suit but he has not taken any effective steps to implead M.A.Jaffar and Sajida Begum as parties to the present suit.
The above said two persons have acquired considerable extent of suit property and to the knowledge of the plaintiff, the said two persons have taken possession of the same. When they have rights over the suit property without impleading as parties to the suit, the suit becomes bad for nonjoinder of necessary parties without whom no effective
Judgment and decree can be passed. I do not find any defect in the reasoning of the trial Court to arrive at the conclusion that the plaintiff has failed to implead M.A.Jabbar and Sajida Begum as parties to the suit and it is fatal to this case. The trial Court has considered the readiness and willingness of the plaintiff to perform his part of the contract and has relied upon the Judgments reported in
N.P.Thirugnanam Vs Dr.R.Jagan Mohan Rao &
Others (1995) 5 SCC 115.
M/s J.P.Builders & another Vs A.Ramadas Rao &
another.
P.D’Souza Vs. Shondrilo Naidu (2004) 6 SCC 649.
R.C.Chandiok & another Vs. Chuni Lal Sabharwal
& others (1970) 3 SCC 140.
on the aspect of readiness and willingness of the court. There cannot be any doubt with regard to suit for the relief of Specific Performance of contract. The plaintiff must show his readiness and willingness to perform his part of contract and it should be effectively demonstrated by the Plaintiff. This aspect is considered as a matter of paramount importance and the trial Court has considered this aspect in view of
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settled principle of law. In this case on hand the agreement under
Ex.A1 was executed on 16.06.1994 along with Ex.A2, which is Special
Power of Attorney. These two documents are to be read together in order to understand the true purport of the agreement between the so called plaintiff.
20.As per the agreement, the plaintiff shall pay the balance of sale consideration within three (3) months from the date of Ex.A1 and obtained a proper sale consideration or power of attorney from Kosaraju
Kamalamma. By the date of Ex.A1 an amount of only Rs.1,00,000/ (Rupees One lakh only) was paid to the Kosaraju Kamalamma and the contents of Ex.A1 also show that earlier there was another agreement in respect of the same suit property and the other parties to the said agreement namely Bommidi Ranga Reddy and Mohd. Arif, then themselves have advised Kosaraju Kamalamma to execute Ex.A1 in favour of the plaintiff. The earlier agreement was cancelled as the parties to the earlier agreement i.e., Bommidi Ranga Reddy and Mohd.
Arif could not fulfill their contractual obligations. In the above said circumstances, Kosaraju Kamalamma has entered an agreement under
Ex.A1 and this agreement was also not agreement within the stipulated time. The plaintiff has not given notice to Kosaraju Kamalamma during her lifetime. Ex.A2 is the Special Power of Attorney, which is contemporaneous document to Ex.A1 and the contents of Ex.A2 also do not show that the plaintiff has any reason to consider that time is not essence of the contract. Except the notice dated 11.06.1997 given to the 1st defendant, there is no proof of any other demand for specific performance of agreement of sale under Ex.A1. There is no evidence to show that the plaintiff has demanded Kosaraju Kamalamma to execute
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the registered sale deed. By executing the registered will in favour of the defendant, it can be construed that Kosaraju Kamalamma has repudiated or rescinded the contract under Ex.A1 and this happened due to inaction on the part of the plaintiff. To comply the terms, the readiness and willingness is to be proved by the conduct of the plaintiff.
The plaintiff who was given absolute freedom to do anything in respect of the suit property for it did not take any steps to develop the property and he gave notice under Ex.A3 on 11.06.1997, almost three (3) years after Ex.A1. Mere filing a cheque book or counter foils of the bank account in no way proves readiness and willingness of the plaintiff and thus, the conduct of the plaintiff is to be evaluated whether he has been ready and willing. Suit of the petitioner was dismissed for non prosecution and it was restored to file to its original number after considerable time. The amount paid was Rs.1,00,000/ (Rupees One
Lakh only), balance of sale consideration is to be paid was
Rs.1,50,000/ (Rupees One lakh fifty thousand only) and petitioner has not made any attempt to pay the balance of the sale consideration even almost after three (3) years though the agreed period for payment was within three (3) months from the date of agreement. Therefore, in my opinion, plaintiff was not ready and willing to perform his part of contract. He could not establish that he was having intention to get the registered sale deed executed in his favour. Though the agreement is to get the registered sale deed executed in his favour, the plaintiff was contemplating that the prospective purchasers are looking forward for them. This could be inferred from the pleadings of the plaint and evidence of PW1 and the said inference is putforth by the averments of the plaint itself, in which, he has stated that he has approached
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Kosaraju Kamalamma only after the prospective purchasers have approached him. In view of the above circumstances, I am of the clear opinion that the finding of the lower court that the plaintiff has not been ready and willing to perform his part of the contract through out, is based on sound reasons and proper analysis of evidence.
21.The trial Court has considered the agreement and compromise between Mohd.Jabbar and Sajida Begum on the one hand and the plaintiff on the other hand. The counsel for the appellant/plaintiff contends that the defendant has suppressed the facts pertaining to
O.S.No.93/1992 in the written statement filed by the 1st defendant. But
duty is cast on the plaintiff to disclose the facts and to be with clean hands and there is no duty cast on the defendants on the same lines.
Thus, the contention of the appellant that the defendants have suppressed the material facts does not hold any water. The trial Court also has considered that the property was alienated in favour of third parties. Admittedly, the suit was dismissed for default and during the interregnum period of dismissal of the suit for default and its restoration, Mohd. Jabbar and Sajida Begum, D2 and D3, who have entered into compromise, have alienated almost the entire land and nothing is remaining out of plaint schedule mentioned property, in respect of which, the plaintiff can seek for a regular registered sale deed. The trial Court, while answering the additional issue has categorically found that plaintiff is not diligent in seeking the Specific
Performance of agreement of sale deed dated 16.06.1994 and I do not find any reason to find fault with the conclusion reached by the trial
Court that plaintiff has not approached the Court with clean hands. The trial Court has assigned reasons for this conclusion. As opined by the
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Hon’ble Supreme Court in Sugani Vs. Rameshwara Das, 2006 (4) ALD
41 (S.C), the basic principle behind section 16 (C ) read with explanation (ii) of the Specific Performance Act is that any person seeking for the relief of Specific Performance of Contract must manifest that his conduct has been blemishless throughout, entitling him to specific relief and this provision imposes a personal bar. In this case on hand, the plaintiff, who has filed the suit long after the agreement, without impleading all the necessary parties and without prosecuting due diligence in prosecuting the suit is to be considered as a person, who has approached the Court with unclean hands. The trial Court has considered all the above facts and law in this regard and found that the plaintiff was not able to prove that he is entitled for relief for Specific
Performance of agreement of sale. For the above said reason, I am of the opinion that dismissal of the suit by the trial Court is proper. Point No.2 is answered in favour of the respondents and against the plaintiff.
22.Point No.3 :
One of the contentions of the counsel for the appellant is that
Vajranath, who is not the contestant, has no locus standi to sign the written statement and gave evidence as DW1. The suit was being contested by the 1st defendant and after his demise D2 and D3 have entered into the shoes of D1. Though they have filed the additional written statement signed by Vajranath/DW1, the 1st defendant has already filed his own written statement and engaged the counsel also.
There is no law, which says that the evidence of the witness in any case, in which, the party on behalf of whom the evidence was given in the absence of examination of the said party as witness is to be thrown aside. In the case on hand, the 2nd and 3rd defendants have been
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contesting the suit and despite this fact, they have chosen to examine
DW1 on their behalf. It is perfectly legal to examine a third party as a witness. The only rule is that if parties and witnesses are examined, party shall be examined first and witnesses are to be examined later. In the said circumstances, I do not find any illegality on the part of the trial Court in relying upon the evidence of DW1 and the documents filed. Further, the plaintiff is under the obligation to prove his case on his own and even if the evidence of DW1 and documentary evidence marked through him are kept aside the evidence adduced by the plaintiff is not enough to prove his claim for the relief of Specific
Performance. The plaintiff` he has not approached the court with clean hands. He was not fair enough in filing the suit three (3) years after the
Ex.A1 and there is no reason for him for not impleading Mohd.Jabbar and Sajida Begum as parties to the suit. There is unreasonable delay in approaching the 1st defendant for execution of the sale deed and the holders of the property have alienated the suit property to third persons and in these circumstances, decreeing the suit for Specific Performance would have larger undesirable consequences and thus, the relief cannot be granted. In Manjula Anandappa urf Sivappa Hansi Vs.
Thammayya and others, AIR 2003 SC 1391, the Hon’ble Supreme
Court had held that even in the cases where the time is not the essence of the contract, the Specific Performance shall be sought for within the reasonable period and it is not done in this case. The appellant has pleaded a number of grounds to prove that DW1 is not a party to the suit but there is no reason for not relying upon this evidence. Further, even when the evidence of PW1 alone is considered, the plaintiff could not make out a case for decree in this suit. It is contended that the
21 A.S.NO.41 OF 2015
compromise between Mohd. Jabbar and Sajida Begum and defendants is illegal. The court cannot declare the compromise as illegal unless
Mohd. Jabbar and Sajida Begum also parties to the suit. The findings of the trial Court that plaintiff has not initiated any steps for Specific
Performance of agreement under Ex.A1 during the lifetime of Kosaraju
Kamalamma is correct and supported by cogent reasons and acceptable evidence. It can be easily inferred that there has been steep hike in the value of the land in the suit schedule mentioned locality and as opined by the Hon’ble Apex Court in V.Pechimuttu Vs Gourammal (2000) 7
SCC 617 the rise of the prices of the property is relevant factor in deciding a suit for the relief of specific performance. The trial Court has ordered refund of the earnest money and it is settled law that such a relief can be granted ever without payment of separate court fee for the said relief as held in Mullapudi Venkata Rayudu Vs Kakarla Madhubala,
AIR 2006 AP 245. As per the said Judgment, the court can order refund of earnest money even when the Court has found that the plaintiff has approached the court for the equitable relief with unclean hands.
Therefore, any of the grounds of appeal except that have bearing on point No.1 above cannot be accepted. Though, Point No.1 was decided in favour of the plaintiff/appellant, the suit cannot be decreed. In view of my findings under Point No.2 above. There is no reason for this court to interfere with the Judgment and Decree passed by the trial Court.
The Judgment does not suffer any infirmity.
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In the result, the appeal is dismissed without costs.
Dictated to the Stenographer, transcribed and typed by her
corrected and pronounced by me in the open Court, on this the 15th day of April, 2019.
Sd/K. PATTABHI RAMA RAO XXV Additional Chief Judge City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE:Nil
Sd/K. PATTABHI RAMA RAO XXV Additional Chief Judge City Civil Court, Hyderabad.