Allowed

Sri a N Prakash v. Smt M S Kusuma Narayan

Karnataka HC7 Dec 2021RFA/682/2018

Case brief

AI extract

What is this about?

This is a regular first appeal against the rejection of a plaint seeking permanent injunction in a sale agreement dispute. The High Court dismissed an interim application for amendment/withdrawal, allowed the appeal, set aside the impugned order rejecting the plaint under the Specific Relief Act bar, and restored the original suit to the Trial Court.

What did the court decide?

The impugned order rejecting the plaint under Order VII Rule 11(d) of the CPC is set aside; the original suit is restored to the Trial Court file.

Sri a N Prakash Vs Smt M S Kusuma Narayan — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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R.F.A.No.682 OF 2018

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BETWEEN:

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Sri.A.N. Prakash, Aged about 47 years, Son of late Sri. Nagaraj, Residing at No.40, 1^st Floor, S.S.M. School Main Road, Vidyapeeta Main Road, Bengaluru - 560 082.

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Represented by his SPA Holder,

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Sri.N.N. Jagadish, Son of late N.L. Narayana Gowda, Aged about 45 years Residing at No.43, Salemma Nilaya 2^nd Cross, Manjunathanagar, Raghuvanahalli, Kanakapura Main Road, Bengaluru - 560 062.

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…Appellant

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(By Sri. C. Shankar Reddy, Advocate)

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AND:

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Smt. M.S. Kusuma Narayan, Wife of late M.S. Narayan, Aged about 54 years, Residing at No.25, 2^nd Main, Geleyara Balaga, Sriramapura,

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R.F.A.No.682/2018

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Mahalakshmipuram, Bengaluru - 560 082.

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(By Sri. Prakash T. Hebbar, Advocate)

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This R.F.A. is filed under Section 96 read with Order XLI Rule (1) of the Code of Civil Procedure, 1908, praying to call for the records in O.S.No.6397/2014 on the file of the VIII Additional City Civil and Sessions Judge, Bengaluru, (CCH-15) peruse the same, hear the appellant and allow the above appeal by setting aside the impugned order and decree dated 01-12-2016 passed therein and restore the suit to file for considering the same on merits and grant such other reliefs as this Court deems fit to grant together with costs in the interest of justice and equity.

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This R.F.A. coming on for Final Hearing, through Physical Hearing/Video Conferencing Hearing this day, the Court delivered the following:

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J U D G M E N T

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This is a plaintiff’s appeal. The suit of the plaintiff in O.S.No.6397/2014 filed in the Court of the VIII Additional City Civil and Sessions Judge (CCH-15) at Bengaluru (hereinafter for brevity referred to as “the Trial Court”) against the present respondent, arraigning her as the defendant for the relief of permanent injunction was disposed of by the Trial Court on Dt. 01-12-2016, in the form of rejection of plaint by allowing the interlocutory application - I.A.No.III filed under Order VII, Rule

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11(d) of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as “the CPC”) filed by the defendant. Aggrieved by the same, the plaintiff has filed the present appeal.

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The summary of the case of the plaintiff in the Trial Court was that, the plaintiff had entered into an agreement for the purchase of suit schedule immovable property from the defendant who was said to be the owner of the schedule property for a sale consideration of a sum of 18,00,000/-. An agreement in that regard was entered into between the parties on Dt. 22-08-2005 and a sum of 1,00,000/- was paid by the plaintiff to the defendant as an advance amount. It was agreed between the parties that, within a week from the date of the order to be passed by the Government, permitting the registration of the immovable properties, the plaintiff should pay the remaining balance sum of `17,00,000/- and get the Sale Deed executed in his favour. However, the plaintiff, contending that during the currency of the said Agreement of Sale, he came to know on Dt. 02-08-2014 that, the defendant was attempting to enter into an Agreement of Sale with the third parties with

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respect to the same property, has filed the Original Suit on Dt. 20-08-2014 in the Trial Court, with the prayer for a permanent injunction, restraining the defendant from entering into any Sale Agreement with any other person in respect of the schedule property to avoid multiplicity of proceedings.

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The defendant, who is the respondent herein entered appearance in response to the suit summons and filed an interlocutory application – I.A.No.III under Order VII, Rule 11(d) of the CPC. After hearing both side, the Trial Court by its impugned order dated 01-12-2016, allowed the said I.A.No.III filed by the defendant and rejected the plaint under Order VII Rule 11 (d) of the CPC. Aggrieved by the said order, the plaintiff in the Trial Court has preferred this appeal.

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In response to the notice, the defendant/respondent herein is being represented by her learned counsel.

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The Trial Court records are called for and the same are

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placed before this Court.

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R.F.A.No.682/2018

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At the submission made by the learned counsel for the plaintiff/appellant herein, the filing of the paper book was dispensed with. The plaintiff/appellant herein has also filed I.A.No.2/2018 under Order XXXIX Rules 1 and 2 of the CPC, before this Court, for the relief of temporary injunction, which I.A. is pending. Later on, the plaintiff/appellant has also filed one more interlocutory application before this Court i.e. I.A.No.1/2021 under Order XXIII, Rule 1 read with Section 151 of the CPC, seeking permission to withdraw the plaint in O.S.No.6397/2014 and to file a comprehensive suit for specific performance of the Agreement of Sale, on the same cause of action. The said application is also pending.

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At the request from both side, both the main matter as

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well as I.A.No.1/2021 were taken up together for arguments.

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Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and also the trial court records.

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R.F.A.No.682/2018

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.

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After hearing the learned counsels for the parties, the points that arise for my consideration in this appeal are:

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[i] Whether I.A.No.1/2021 deserves to be allowed?

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[ii] Whether the applicant (defendant) in I.A.No.III filed under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908, could able to convince that the suit of the plaintiff was barred by law?

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[iii] Whether the impugned order and decree warrants interference at the hands of this Court?

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After hearing both side in the matter, it can be taken at this stage and for the limited purpose of disposal of this appeal that, the plaintiff has averred that he entered into an agreement with the defendant on 22-08-2005, agreeing to purchase the suit schedule property which is an immovable property in the form of a site measuring 60 ft. x 40 ft. situate in Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk, for a

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total sale consideration of a sum of 18,00,000/- in which a sum of 1,00,000/- was said to be paid as advance by the plaintiff to the defendant. An agreement dated 22-08-2005 is said to have been entered into between the parties wherein the defendant, as a vendor had agreed to sell the suit schedule property to the plaintiff. The term for completion of the contract and for execution of the Sale Deed was said to have been mentioned as 'within a period of one week from the date of order passed by the Government lifting the ban on registration of the property'. Admittedly, no specific date or period is mentioned in the agreement, but it is contingent upon the Government passing an order regarding the registration of immovable property. Needless to say, except a sentence that the performance would be due within a week from the date of the Government passing the order regarding the registration of the immovable properties, as could be seen at this stage and prima facie from the Agreement of Sale, a copy of which is placed before this Court, no more details are given as to why the registration could not be possible at any given date or at the time of the agreement or in its near proximity. There are also no further

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details as to the existence of any ban on the registration of any immovable properties or requirement of any Government Order for the registration of any immovable property. However, those points, at this stage, for the disposal of the present appeal are not required or warranted.

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It is contending that several years after the agreement, i.e. on Dt. 02-08-2014, he (the plaintiff) came to know that the defendant who was the vendor under the agreement was trying to alienate the property, the plaintiff approached the Trial Court by filing the original suit in question for the relief of bare injunction. The defendant did not file her Written Statement, but before that, she filed I.A.No.III under Order VII, Rule 11(d) of the CPC in the Trial Court contending that, the suit is barred by law, since it is hit by Section 41 (h) of the Specific Relief Act, 1963 (hereinafter for brevity referred to as "the Act").

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The summary of the application filed by the defendant under Order VII Rule 11 (d) of the CPC, before the Trial Court was that, when there was equally efficacious relief in the form of

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specific performance available to the plaintiff, he was not entitled for the relief of injunction. The Trial Court accepted the said contention and rejected the plaint.

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The learned counsel for the plaintiff/appellant herein in his argument submitted that, the plaintiff no where stated that, the ban on registration of the revenue sites is lifted and therefore, cause of action has arisen for the plaintiff to file a suit for specific performance. He further submitted that in view of non-availability of cause of action for the plaintiff to sue the defendant for the relief of specific performance, the question of denying him the relief of permanent injunction would not arise under Section 41 (h) of the Specific Relief Act.

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The learned counsel for the plaintiff/appellant herein further contended that, however, in order to avoid any multiplicity of proceeding though he has got a merit in the appeal, he has filed I.A.No.1/2021 under Order XXIII, Rule 1 of the CPC before this Court so that he can withdraw the suit for permanent injunction and file a comprehensive suit for specific performance of the agreement.

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R.F.A.No.682/2018

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When I.A.No.1/2021 is first taken into consideration, it can be seen that the applicant/plaintiff/appellant herein has stated that the impugned order of the Trial Court suffers from various legal infirmities and it is a tenable ground to canvass against the impugned judgment and decree. He also contended that the impugned order was passed and plaint has been rejected without even recording the evidence, on the other hand by invoking Order VII, Rule 11 (d) of the CPC. He further submitted that though the suit is maintainable and he has got a good case on merit in the present appeal, but still for seeking the relief of specific performance, he filing an application, seeking permission to amend his plaint and praying for additional reliefs would all being a cumbersome procedure, he has decided to file the present interlocutory application - I.A.No.1/2021 under Order XXIII, Rule 1 of the CPC. Same is the argument of the learned counsel for the appellant/applicant also on the said I.A.

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The defendant/respondent herein has filed her Statement of Objection to the said application denying all the averments made in the said application and the contentions

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taken up by the applicant in his application. On the other hand, she has categorically stated that the plaintiff was quite sure and aware of the fact that any suit filed by him afresh for the relief of specific performance would be barred by law of limitation. As such, in order to over come the legal hurdle of law of limitation, he has filed the present application to achieve his purpose of filing the suit for specific performance. She further contended that since the original agreement itself is terminated by issuing a notice to the plaintiff, the question of even filing a suit for specific performance of the agreement also would not arise.

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The very contention of the plaintiff in O.S.No.6397/2014 is that the agreement dated 22-08-2005 entered into between himself and the defendant is still subsisting. It is his case that during the subsistence of the said agreement, the defendant who is the vendor under the agreement cannot enter into any other Agreement of Sale with respect to the very same property with any other third person. This has made him to approach the Court for the relief of permanent injunction.

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R.F.A.No.682/2018

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If that were to be the crux of the case of the plaintiff in O.S.No.6397/2014 and which is also the plaint averment regarding the cause of action, then, even according to the plaintiff, till date, no cause of action has arisen to him to file a suit for specific performance of the agreement. In such an event, how come he can file a comprehensive suit for specific performance when the cause of action question has not arisen to him, would be a question. No answer is given on the doubt in the case paper before me.

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Secondly, the ground shown in the application is only to avoid the alleged cumbersome procedure. I do not think that seeking an amendment of the pleading would be a cumbersome procedure. If the applicant deserves the permission, he would be granted, otherwise he would not. As such, contending that it would be a cumbersome procedure to opt for amending the pleading and as such he has decided to file the present application, is not an acceptable ground.

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Therefore I do not find any reason in allowing the interlocutory application - I.A.No.1/2021 filed by plaintiff in this Court.

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Order VII, Rule 11 (d) of the CPC says that, the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. A reading of the said provision makes it very clear that, in order to hold that the suit is barred by any law on the said application, which is filed under Order VII Rule 11 (d) of the CPC, the Court is required to look only into the plaint averments but not any other contention.

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In the instant case, admittedly, the defendant has not filed the Written Statement but in her application i.e. I.A.No.III filed under Order VII, Rule 11(d) of the CPC, she has stated that the Agreement of Sale was terminated by issuing a notice to the plaintiff long back for which the plaintiff has not replied, as such, there is no agreement subsisting. Further, it is contended that when there is an efficacious remedy available to him in a suit under the Act, he is not entitled and eligible for the relief of

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permanent injunction. This was the main argument of the learned counsel for the respondent/defendant in this appeal.

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I am not convinced with the said argument of the learned counsel for the defendant/respondent for the reason that, admittedly, the suit of the plaintiff is for the relief of permanent injunction simplicitor. According to the plaintiff, though the Agreement of Sale was entered into in the year 2005 with the defendant, but its performance is yet to be enforced and the cause of action still survives for him. It is his specific case that since during the subsistence of the agreement, on the date 02-08-2014, while passing near to the suit schedule property, he noticed a gathering of people and through enquiry, came to know that the defendant, as a vendor was negotiating for the sale of the very same property to somebody else, he got the cause of action to sue the defendant for the relief of permanent injunction. When such a specific plaint averment is made by the plaintiff and in the absence of any pleading about the alleged expiry of the Agreement of Sale dated 22-08-2005, or alleged possibility or impossibility of passing of any Government Order

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for the registration of immovable properties (which according to the learned counsel for the plaintiff/appellant is lifting the ban on the registration of revenue sites), it is too early to hold that the plaintiff had an efficacious relief through the specific performance of the contract, as such, the injunction cannot be granted to him under Section 41 (h) of the Act.

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It is needless to say that, in the facts and circumstances of the case, the alleged existence of any prohibition for the sale and registration of immovable properties or alleged requirement or anticipation of passing of any order by the Government, permitting the registration of such immovable properties are all purely questions of fact. It is in the light of proving those facts one way or the other, the question of limitation would arise. Therefore, it is clear that, without noticing that the matter before it regarding the limitation or bar of a suit involves both the question of law and fact, the Trial Court committed an error by prima facie jumping into a conclusion by holding that the suit was barred under Order VII, Rule 11 (d) of the CPC. In the said exercise, the Trial Court did not even consider as to whether

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Section 41 (h) of the Act would act as a bar as prescribed under Order VII, Rule 11 (d) of the CPC leading to rejection of a plaint.

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For all these reasons, I am of the view that the impugned order of the Trial Court deserves to be set aside.

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Accordingly, I proceed to pass the following:

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O R D E R

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[i] I.A.No.1/2021 filed under Order XXIII,

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Rule 1 of the Code of Civil Procedure, 1908, by the plaintiff/appellant in this Court stands dismissed;

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[ii] The Regular First Appeal is allowed;

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[iii] The impugned order dated 01-12-2016,

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passed by the learned VIII Additional City Civil and Sessions Judge (CCH-15) at Bengaluru, in Original Suit No.6397/2014, rejecting the plaint under Order VII, Rule 11(d) of the Code of Civil Procedure, 1908, is set aside;

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[iv] I.A.No.III filed under Order VII, Rule 11(d) of the Code of Civil Procedure 1908, by the defendant in the Trial Court stands dismissed;

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O.S.No.6397/2014 in the Court of the learned VIII Additional City Civil and Sessions Judge (CCH-15) at Bengaluru, stands restored on its original file for its further proceeding;

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[vi] In order to avoid any further delay in the disposal of the original suit, both side parties are directed to appear before the learned VIII Additional City Civil and Sessions Judge (CCH-15) at Bengaluru, without anticipating any fresh notice or summons from it on 11-01-2022 at 11:00 a.m.

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In view of disposal of the main appeal, pending I.A.No.2/2018 does not survive for consideration.

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Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Court, immediately.

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Sd/JUDGE

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BMV*

Sri a N Prakash v. Smt M S Kusuma Narayan

Case brief

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Sri a N Prakash v. Smt M S Kusuma Narayan

Case brief

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