Partly allowed

Smt. Rajeevi v. Sri. Devdas Melanta

Karnataka HC11 Aug 2023RFA/222/2017

Case brief

AI extract

What is this about?

Appeal against decree of specific performance. The court held the suit was not barred by Order II Rule 2 CPC, upheld the agreement and advance payment, and modified the decree directing plaintiff to pay an additional Rs.10 lakhs towards escalated property value.

What did the court decide?

The plaintiff shall pay Rs.13,00,000/- as balance sale consideration plus an additional Rs.10,00,000/- to the defendants within three months; defendants to execute sale deed within three months upon r

Smt. Rajeevi Vs Sri. Devdas Melanta — Specific Performance | Karnataka HC (2023)

RFA.No.222 of 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.222 OF 2017 (SP)

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Between:

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Smt.Rajeevi, W/o Ramakrishna Shetty, Aged about 60 years, Kenjaru House, Kenjaru Village, Mangalore Taluk, Dakshina Kannada District.

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Smt.Latha, D/o Ramakrishna Shetty, Aged about 43 years,

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Smt.Asha @ Usha, D/o Ramakrishna Shetty, Aged about 40 years,

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Sri Rajesh @ Baby S/o Ramakrishna Shetty, Aged about 38 years,

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Appellants 2, 3 and 4 are Residing together at Door No.349, BEML Layout, Kamalanagar, Basaveshwaranagar, Bangalore-560 079. .. Appellants

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( By Sri Ajith A. Shetty, Advocate )

RFA.No.222 of 2017

And:

Sri Devdas Melanta, S/o late Thimmappa Melanta, Aged about 61 years, Bajal Beedu House, Bajal Post, Mangalore, Dakshina Kannada District. .. Respondent

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( By Sri Prasanna V. R., Advocate )

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This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, praying to call for records and be pleased to set aside the impugned judgment and decree dated 24th October 2016, passed by the Hon'ble II Addl.Senior Civil Judge, Mangalore, in O.S.No.143 of 2013, in so far as allowing the plaint prayer whereupon these defendants have been directed to execute a regular Sale Deed in respect of the suit schedule property and to place the respondent (plaintiff) in possession thereof, in the interest of justice and equity.

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This Regular First Appeal having been heard through Physical Hearing/Video Conference and reserved on 24.07.2023, coming on for pronouncement of judgment, this day, the Court delivered the following:

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JUDGMENT

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This is a defendants’ appeal. The present

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respondent as a plaintiff had instituted a suit against the present appellants arraigning them as defendants in O.S.No.143/2013, in the Court of the

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II Addl.Senior Civil Judge, Mangaluru, Dakshina Kannada, (hereinafter for brevity referred to as `the trial Court’),

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seeking for the relief of specific performance of Agreement for Sale dated 15.03.2010 in respect of plaint schedule property and for such other reliefs.

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The summary of the case of the plaintiff in the trial Court was that, the defendants had acquired the plaint schedule property through a family Partition Deed dated 21.06.1996 and they entered into an Agreement for Sale on 15.03.2010 with the plaintiff, agreeing to sell the plaint schedule property in favour of the plaintiff for a valuable consideration of a sum of 15 lakhs. Out of the total agreed amount, the plaintiff paid an advance amount of 2 lakhs through a cheque bearing No.515467, dated 16.03.2010, drawn on Vijaya Bank, Industrial Suburb, Mysuru Branch. The defendants have realised the said cheque. It was agreed in the Agreement for Sale that the

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balance sale consideration of `13 lakhs to be paid by the plaintiff within a time of six months and that the defendants to execute the Sale Deed within the said time after securing the necessary documents.

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The plaintiff contends that though he was always

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ready and willing to perform his part of the promise by paying the balance amount of `13 lakhs, however, the defendants were not ready and prepared to execute the Sale Deed in his favour by accepting the balance sale consideration. His repeated requests to the defendants since did not yield any favourable result, the plaintiff in the month of December 2010, approached the General Power of Attorney Holder of defendant Nos.2 to 4 Sri Ramakrishna Shetty, who had signed the agreement on behalf of defendant Nos.2 to 4, however, there was no favourble response from him. The plaintiff further stated that he contacted defendant No.1 at her residence, who expressed her ignorance about the alleged Agreement for Sale. He also contacted defendant Nos.2 to 4 over the phone and requested them to execute the Sale Deed, however, they also did not show any interest to execute the Sale Deed. Thereafter, the plaintiff during the second week of July 2011, went to the house of defendant No.1 to request them to execute the Sale Deed as per the

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Agreement, however, to his surprise, he came to know that the negotiation was going on to sell the very same property to some other Muslim party. The plaintiff tried to convince the defendants and General Power of Attorney Holder of defendant Nos.2 to 4 to execute the Sale Deed in terms of the agreement entered with him, however, they were not in a position to hear him. The plaintiff further says that he also came to know that the negotiating party had paid a sum of `2 lakhs by way of advance to the defendants for the purchase of the plaint schedule property.

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By virtue of the said hostile action of the defendants, who are not willing to execute the Sale Deed in his favour by accepting the balance sale consideration, he approached the Court by filing a suit in O.S.No.583/2011 against the defendants, which was pending in the Court of learned III Addl.Civil Judge & J.M.F.C., at Mangaluru. The plaintiff has further stated that, in the said suit, the defendants filed their written statement denying the existence of the Agreement for sale dated 15.03.2010 and

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also the General Power of Attorney executed by defendant

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Nos.2 to 4. The plaintiff states that the Partition Deed, through which the defendants have derived their right

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over the plaint schedule property, is on the very same General Power of Attorney executed by defendant Nos.2 to 4 on 24.01.1996 at Bengaluru. Apart from the same,

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even a registered Sale Deed registered as document No.1793/2009-10 of Sub-Registrar Office, Mangaluru, pertains to sale of the property in favour of one Mr.Yathish Shetty, wherein the defendant Nos.2 to 4 were the vendors of the property and were also represented through the very same General Power of Attorney Holder. The plaintiff states that since his other suit i.e., O.S.No.583/2011 was for the relief of permanent injunction against the defendants, the present suit was preferred for the relief of specific performance of the contract. He also stated that, immediately after obtaining an injunction in the other suit, he addressed a letter to the defendants and requested them to execute the Sale Deed, but, there was no response from the defendants. He has

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stated that, he is having an amount of `13 lakhs to pay to

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the defendants as balance sale consideration and is ready to get the execution of the Sale Deed. Since the defendants have not come forward to perform their promise, he was constrained to institute the present suit.

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In response to the suit summons served upon

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them, the defendant Nos.1 and 3 appeared through their counsel. The defendant Nos.2 and 4 did not appear before

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the trial Court, as such, they were placed ex parte. The defendant No.1 did not file her written statement nor adopted the written statement filed by defendant No.3. It is the defendant No.3 who alone had filed her written statement.

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In her written statement, defendant No.3 contended

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that the very same plaintiff has filed a suit for bare injunction in O.S.No.583/2011, which is still pending. The said suit is also based on the Agreement for sale dated 15.03.2010. As such, with respect to one Agreement,

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two suits are not permissible to be filed, hence, the later suit, which is the present suit, is hit by principles of

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Order II Rule 2 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as CPC’). The defendant No.3 also contended that the suit was barred by time. The defendant No.3 denied the alleged execution of Agreement for Sale dated 15.03.2010 of the plaint schedule property to the plaintiff for a consideration of a sum of 15 lakhs and receiving a sum of 2 lakhs as advance sale consideration. She also denied that the plaintiff was ready and willing to buy the suit schedule property and contended that he had no financial capacity to buy the suit schedule property. She denied that the defendants were attempted to alienate the suit property to any other purchaser. She termed the alleged Agreement for Sale put forth by the plaintiff as a forged document. The defendant No.3 also denied that the defendants had executed a General Power of Attorney dated 24.01.1996. She further contended that, as on the date of the suit, the plaint schedule property was worth more than 1 crore. With this, she prayed to dismiss the suit.

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Based on the pleadings of the parties, the trial

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Court framed the following issues for its consideration:

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“1. Whether the plaintiff proves that the defendants No.1 to 4 have entered into an Agreement for sale dated 15.03.2010 with the plaintiff in respect of suit schedule property and has received the sum of ` 2,00,000/- towards part of sale consideration amount from the plaintiff?

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2. Whether the plaintiff proves that he is always ready and willing to perform his part of obligations arising out of the contract for Agreement for sale dated 15.03.2010?

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3. Whether the plaintiff proves that there is breach of obligations on the part of the defendants arising out of the contract for sale Agreement dated 15.03.2010?

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4. Whether the plaintiff is entitled for specific enforcement of the Agreement for Sale dated 15.3.2010 against the defendants in respect of suit schedule property?

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5. Whether the plaintiff is entitled for the relief as prayed for?

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6. What Order or Decree?

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In support of his plaint, the plaintiff got himself examined as PW-1 and one Sri Ramakrishna Shetty as PW-2 and got produced and marked documents from Exs.P-1 to P-18. On behalf of the defendants, one Sri Balakrishna Gambheera was examined as DW-1 and got produced and marked one document at Ex.D-1.

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After hearing both side, the trial Court by its impugned judgment and decree dated 24.10.2016, answering issue Nos.1 to 5 in the affirmative, decreed the suit in favour of the plaintiff by holding that the plaintiff is entitled for specific enforcement of the Agreement for Sale dated 15.03.2010 and the defendant Nos.1 to 4 were directed to execute the registered Sale Deed pertaining to the plaint schedule property in favour of the plaintiff in pursuance of the Agreement for sale dated 15.03.2010 by receiving the balance sale consideration and to put the plaintiff in actual physical and vacant possession of the plaint schedule property within two months from the date of passing of the judgment. Being aggrieved by the same,

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the defendants-appellants have preferred the present appeal.

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The learned counsel for the appellants

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(defendants) and learned counsel for respondent (plaintiff) are physically appearing before the Court.

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The trial Court records were called for and the same are placed before this Court.

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Heard the arguments of the learned counsels from both side and perused the material placed before this Court, including the memorandum of appeal, impugned judgment and the trial Court records.

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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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Learned counsel for the appellants (defendants) in his argument submitted that, the suit is hit by Order II Rule 2 of CPC, the General Power of Attorney dated 24.01.1996 shown to have been given by defendant Nos.2, 3 and 4 in favour of Sri Ramakrishna Shetty has

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not been marked in evidence. He also submitted that the defendants have categorically denied that they have executed any Agreement for sale in favour of the plaintiff. Finally, he contended that plaintiff has not proved his readiness and willingness to perform his part of the promise under alleged Agreement for sale.

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Per contra, learned counsel for the respondent/ plaintiff in his argument submitted that Order II Rule 2 of CPC is not applicable in the case on hand since causes of action for filing previous suit O.S.No.583/2011, which was for permanent injunction, are totally different from the present suit which is O.S.No.143/2013, from which the present appeal has arisen. He further submitted that the Agreement at Ex.P-1 is proved by the plaintiff by leading evidence. Further, the evidence of PW-1 that he was always ready and willing to perform his part of the promise has not been denied or disputed from the defendants’ side. He also contended that defendant No.3 who alone had filed her written statement, did not enter the witness box, however, she got examined her Power of Attorney

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Holder, though he was her husband, as DW-1. No attempt was made by the said witness to disprove the evidence of the plaintiff. With this, he submits that the impugned judgment and decree does not warrant any interference at the hands of this Court.

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In the light of the above, the points that arise for my consideration in this appeal are:

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(i) Whether the defendants prove that the suit of the plaintiff was not maintainable by virtue of Order II Rule 2 of CPC?

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(ii) Whether the plaintiff has proved that defendant Nos.1 to 4 have entered into an Agreement for sale dated 15.03.2010 with him agreeing to sell the suit schedule property for a sum of _15 lakhs and have received a sum of_ 2 lakhs towards part of sale consideration from him?

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(iii) Whether the plaintiff has proved that he is always ready and willing to perform his part of the obligation under the Agreement for sale dated 15.03.2010?

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(iv) Whether the plaintiff is entitled for the relief of specific performance of the Agreement for Sale dated 15.03.2010 against the defendants with respect to suit schedule property?

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(v) Whether the impugned judgment and decree warrants any interference at the hands of this Court?

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The suit of the plaintiff is for a judgment and decree for specific performance against the defendants with respect to an alleged Agreement for Sale dated 15.03.2010 said to have been executed by the defendants agreeing to sell the suit schedule immovable property to

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the plaintiff for a total consideration of a sum of 15 lakhs. Accordingly, the plaintiff has paid a sum of 2 lakhs as an advance amount in the form of part sale consideration to the defendants. The time agreed for the performance of the contract was six months. It is his further contention that defendants were trying to alienate the suit schedule property in favour of third party and thereby trying to frustrate the Agreement for Sale executed in his favour. Thus, depriving the plaintiff of acquiring the property though he was always ready and willing to perform his part of the contract under the agreement. In that background, he approached the

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learned III Addl.Civil Judge & J.M.F.C., Mangaluru

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(hereinafter for brevity referred to as `Civil Judge Court, Mangaluru') and filed O.S.No.583/2011 for the relief of

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permanent prohibitory injunction against the defendants restraining them from selling the suit schedule property in favour of any third parties or in any manner alienating the said property or in creating any encumbrance thereon in any manner till it is sold in favour of the plaintiff. He has also stated in his plaint that since the said suit in O.S.No.583/2011 which was pending as on the date of filing of the present suit, was for the relief of permanent prohibitory injunction and the present suit is for the relief of specific performance of the contract, the suit would not be coming in any way of sub judice.

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The defendant No.3 in her written statement citing the pendency of O.S.No.583/2011 as on the date of institution of the present suit O.S.No.143/2013, contended that, with respect to one Agreement, two suits are not permissible to be filed, as such, the present suit is hit by the principles of Order II Rule 2 of CPC. She also

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contended that the plaintiff should have asked for all the reliefs available to him in one suit and that he is not permitted to split the suits and file two suits in respect of one Agreement for Sale.

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The plaintiff who got himself examined as PW-1 has reiterated the plaint averments about he filing O.S.No.583/2011 against the defendants in the Civil Judge

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Court at Mangaluru and got produced Exs.P-1 to P-18, which inter alia includes the alleged Agreement for Sale dated 15.03.2010 at Ex.P-1, certified copy of the judgment and decree in O.S.No.583/2011 at Exs.P-12 and P-13 respectively and the certified copy of evidence of DW-1 Smt.Latha (who is the defendant No.2 in the present suit) in O.S.No.583/2011, at Ex.P-18.

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The General Power of Attorney Holder of defendant No.3 Sri Balakrishna Gambheera, who is also said to be the husband of defendant No.3, in his examination-in-chief filed in the form of affidavit evidence

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has only stated that O.S.No.583/2011 since has been dismissed, against which, no appeal has been filed by the

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plaintiff, the same has become final, as such, the present suit is not maintainable in law. Thus, the defendant No.3 though had taken a stand in the written statement that as per Order II Rule 2 of CPC, the present suit is not maintainable, however, DW-1 in his evidence has no where whispered about Order II Rule 2 of CPC.

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Learned counsel for the appellants (defendants) in his arguments submitted that in the written statement filed in O.S.No.583/2011 itself, the defendants had denied the execution of the Agreement dated 15.03.2010 and also execution of alleged General Power of Attorney by

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defendant Nos.2 to 4. Further, in the plaint in O.S.No.583/2011, the plaintiff has contended that defendants were trying to sell the suit schedule property to third party. Therefore, the cause of action to file suit for specific performance had already arisen and accrued to the plaintiff while he was filing O.S.No.583/2011, but, the plaintiff did not choose to file a suit for specific performance nor reserved liberty to file such a suit later. As such, the suit is hit by Order II Rule 2 of CPC. In his

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support, he relied upon a judgment of Hon’ble Apex Court in Vurimi Pullarao, S/o Satyanarayana -vs- Vemari Vyankata Radharani Dhankoreshwarrao and another, reported in AIR 2020 SC 395.

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Learned counsel for the respondent (plaintiff) in

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his argument submitted that there is no intentional relinquishment by the plaintiff of his right to sue for the relief of specific performance in the plaint filed in O.S.No.583/2011. He further submitted that the plaintiff

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omitting to sue for the relief of specific performance also would not arise because the plaintiff had still time to sue for specific performance. Further, there was no denial of the defendants of performance, therefore, there was no omission to sue. He also submitted that no specific issue was framed with respect to Order II Rule 2 of CPC.

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Order II Rule 2 of CPC reads as below :

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“ 2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may

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relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

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(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

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(3) Omission to sue for one of several reliefs .- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”

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A reading of the above provisions of Order II Rule 2 of CPC, would go to show that the filing of the second suit in respect of the same cause of action as that on which the

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previous suit was filed without obtaining the leave is barred. Further, with respect to the same cause of action, the plaintiff should have been entitled for more than one relief, including the relief sought for in the previous suit and the relief sought for in the subsequent suit. However, the plaintiff without

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obtaining the leave from the Court has omitted to sue in the earlier suit for the relief for which the second suit has been filed. Thus, in order to attract the applicability of the bar enunciated under Order II Rule 2 of CPC, the cause of action on which the subsequent claim is founded ought to have been arisen to the plaintiff when enforcement of the

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first claim was sought before the Court.

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In Pullarao’s case (supra), which was relied

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upon by the learned counsel for the appellants, a Civil Appeal arising out of a Special Leave Petition was filed before the Hon’ble Apex Court, which had arisen from the judgment of the Nagpur Bench of High Court of Judicature

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of Bombay. In a Second Appeal, the High Court had come to the conclusion that the suit for specific performance instituted by the appellant was barred by Order II Rule 2 of the CPC, since the appellant had instituted an earlier suit for injunction. The trial Court, as well the first Appellate Court had noticed that, while instituting the earlier suit, it was in the contemplation of the appellant that a suit for specific performance of the agreement to

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sell would be instituted, in spite of which, no leave of the Court was sought under Order II Rule 2(3) of CPC. Thus, the appeal before the Hon’ble Apex Court had arisen from the concurrent findings that had been recorded by the trial Court, first Appellant Court and the High Court in the Second Appeal, holding the suit to be barred.

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The Hon’ble Apex Court after analysing the scope of Order II Rule 2 of CPC in detail and applying the same to the facts and circumstances of the case before it, was pleased to hold that Order II Rule 2 of CPC was attracted. The plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted, but, omitted to do so. It further observed that, there was an identity of the cause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the plaintiff that it was in pursuance of the agreement to sell dated 26.10.1995 that he had been placed in possession of the property. Yet, without seeking the leave

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of the Court, the plaintiff omitted to sue for specific performance and rested content with the prayer for

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permanent injunction. In those circumstances, the

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Hon’ble Apex Court did not find fault in the finding that had been arrived at by all the three Courts that the subsequent suit was barred by Order II Rule 2 of CPC. Accordingly, the appeal came to be dismissed.

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In Pullarao’s case (supra), the Hon’ble Apex Court has referred to a decision of the Privy Council in Mohd.Khalil Khan -vs- Mahbub Ali Mian, reported in AIR 1949 PC 78, and extracted a portion of it, which reads as

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below :

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" (1) The correct test in cases falling under Order 2 Rule 2 is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit."

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(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

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(3) If the evidence to support the two claims is different, then the causes of action are also different.

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(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.

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(5) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour."

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It is keeping the above principles in mind, it has to

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be analysed whether the suit of the plaintiff was barred under Order II Rule 2 of CPC.

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According to the plaintiff, who also led his evidence as PW-1, the date of alleged Agreement for Sale, which is at Ex.P-1 is dated 15.03.2010. As per Clause-5 of the said Agreement, the time fixed for performance of the Agreement was six months from the date of the Agreement. As such, the said date would come to an end on 14.09.2010. It is thereafter the plaintiff had filed the

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suit against the defendants in O.S.No.583/2011 on 28.07.2011, which can be gathered from the certified copy of the judgment passed in the said suit, which is at Ex.P-12. As could be gathered from the said Ex.P-12, as well the pleading in the present suit and the

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evidence of PW-1, since there was no positive response from the defendants to execute the Sale Deed, during the second week of July 2011, he went to the house of defendant No.1 in order to request them to execute the Sale Deed as agreed, but, he was very much surprised to see a Muslim party in the first defendant’s house who were discussing about the conditions regarding the sale of plaint schedule property. Immediately after he came to know that the defendants were trying to dispose of the plaint schedule property in favour of third party, he tried to convince defendant No.1 and General Power of Attorney Holder of defendant Nos.2 to 4, however, they were not in a position to hear any of his words. Having no other option, finally he asked the reason with defendants as to why they did not wish to sell the plaint schedule property to him, but, intending to sell it to third parties, for which, defendant No.1 and General Power of Attorney Holder of defendant Nos.2 to 4 demanded higher price for the said property from him. When he informed the defendants about the consideration agreed in the Sale Agreement

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(Ex.P-1), the defendant No.1 and General Power of

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Attorney Holder of defendant Nos.2 to 4 informed him that the Agreement was of the year 2010 and presently i.e., during the month of June 2011, the rate of the land has been increased and they were not willing to execute the Sale Deed at that rate and on the other hand, since third parties are coming forward with higher rate, they are selling the schedule property to them only. Hence, he has filed O.S.No.583/2011 for the relief of injunction restraining the defendants from alienating the plaint schedule property.

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From the above pleading, as well the evidence of PW-1 in his examination-in-chief, it is clear that, before filing the suit in O.S.No.583/2011, which was filed on 28.07.2011, it was made clear by the defendants that they are not going to execute the Sale Deed with the rate agreed at Ex.P-1 to the plaintiff, on the other hand, they are going to sell it to third parties for a higher price. Thus, the refusal of performance of their promise by the defendants under the Agreement at Ex.P-1 was made clear

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to the plaintiff and the plaintiff was in knowledge of the

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same in the second week of July 2011. Thus, he proceeded to file O.S.No.583/2011 in the next week i.e., on 28.07.2011. As such, by that time, it is not only the cause for filing a suit for permanent injunction had arisen and accrued to the plaintiff on the said day, but, also a cause of action for filing a suit for the relief of specific performance of the alleged Agreement at Ex.P-1.

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Incidentally, in the meantime, six months time

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shown to have been agreed under Ex.P-1 for its performance had already been expired, however, limitation period to file a suit for specific performance was still available to the plaintiff. However, the plaintiff chose to institute a suit only for the relief of permanent injunction. In the said process, he did not even reserve liberty to file the suit for specific performance under Order II Rule 2 of CPC.

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Though the learned counsel for the respondent/ plaintiff submits that the said omission is not intentional, however, a reading of Order II Rule 2 of CPC does not

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makes it necessary to have an intention for the said omission to sue in respect of any portion of his claim. It is in the similar circumstances of the matter before it, the Hon’ble Apex Court in Pullarao’s case (supra), was pleased to hold that Order II Rule 2 of CPC was attracted. However, some important aspects in the present suit under consideration i.e., O.S.No.143/2013 deserves some attention to see whether O.S.No.143/2013 can be held as not barred under Order II Rule 2 of CPC. In that regard, the following points are to be noticed :

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(i) The written statement in the present suit is filed

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only by defendant No.3 and not by other defendants i.e., defendant Nos.1, 2 and 4. The defendant No.1 though appeared through her counsel, neither filed her written statement nor adopted the written statement filed by defendant No.3. Further, defendant Nos.2 and 4 remained ex parte . As such, the contention that the suit being not maintainable under Order II Rule 2 of CPC has been taken only by defendant No.3, but, not by the remaining three defendants. As such, neither there is any pleading nor

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any evidence from defendant Nos.1, 2 and 4 in the entire

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suit.

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(ii) The defendant No.3 in her written statement only

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in Paragraph No.2 has taken the contention as below :

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" That the plaintiff has already filed a suit in O.S.No.583/2011 on the file of the III Additional Civil Judge, Mangalore, D.K. The said suit is one for bare injunction to restrain these defendants from selling the plaint schedule property in favour of any third parties. The suit is still pending enquiry. The suit is also based on the alleged agreement for sale dated 15.03.2010. In the present suit, plaintiff is asking for a decree for specific performance of an agreement for sale. In respect of one agreement, two suits are not permissible to be filed. Therefore, later suit, which is the present suit, is hit by the principles of Order II Rule 2 of the C.P.Code. Always a plaintiff must ask for all reliefs available to him in one suit. A plaintiff cannot be permitted to split the reliefs and file two different suits in respect of one agreement for sale. On this ground also, the present suit is not maintainable in law."

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(Emphasis supplied)

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Except pleading that in respect of one agreement, two suits are not permissible to be filed and all reliefs

¶188

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available to him to be asked by the plaintiff in one suit, the defendant No.3 no where has whispered that both the suits are filed in respect of the same cause of action. Thus, the written statement (pleading of defendant No.3) is totally silent about the cause of action upon which the previous suit, which is O.S.No.583/2011 and the present suit i.e., O.S.No.143/2013, are filed. The evidence of DW-1 is not an exception to the above. Further, the evidence of a party is required to be supported with his pleadings.

¶191

(iii) The cause of action, upon which the previous suit i.e., O.S.No.583/2011 was filed, could have been ascertained only after going through the plaint filed by the plaintiff in that suit, for which, the production of the plaint of the previous suit in the subsequent suit in a manner known to law is very much necessary. However, the defendants in the present suit, particularly the defendant No.3, who alone contested the suit, has not produced and got it marked as an exhibit of the copy of the plaint in O.S.No.583/2011.

¶192

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A Bench consisting of three Hon'ble Judges of Hon'ble

¶195

Apex Court in Jayantilal Chimanlal Patel -vs- Vadilal Purushottamdas Patel, reported in (2017) 13 SCC 409, while referring to its previous judgment in Gurbux Singh -vs- Bhooralal, reported in AIR 1964 SC 1810, was pleased to extract Paragraph No.6 of the said judgment, which reads as below :

¶196

" 6…..As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS No.28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2 Rule of the Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and

¶197

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pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable."

¶200

(Emphasis supplied)

¶201

Thus, it held that to maintain plea of bar under Order II Rule 2 of CPC, plaint of earlier suit must be exhibited as evidence.

¶202

In Alka Gupta -vs- Narender Kumar Gupta, reported in 2010 (10) SCC 141, in Paragraph-13 of its judgment,

¶203

the Hon'ble Apex Court was pleased to observe that, unless the defendant pleads the bar under Order II Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the Court cannot examine or reject a suit on that ground.

¶204

In the instant case, even though the defendant No.3, who alone has filed her written statement, has taken a plea of non-maintainability of suit under Order II Rule 2 of CPC, however, as observed above, no where in her pleading (written statement), the defendant No.3 has

¶205

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stated that both, previous suit i.e., O.S.No.583/2011 and the present suit i.e., O.S.No.143/2013, were filed in respect of the same cause of action. As such, the trial

¶208

Court has not framed any issue focusing the parties on that bar to the suit. Had really the contesting defendant (defendant No.3) was not satisfied with the issues framed

¶209

by the trial Court and if according to her, an issue regarding maintainability of the suit by virtue of Order II Rule 2 of CPC be framed, then, she could have taken appropriate steps under Order XIV Rule 5 of CPC, requesting the trial Court to amend the issues or frame an additional issue, however, no such attempt was made by the defendant No.3.

¶210

(iv) According to the learned counsel for the respondent, O.S.No.583/2011 was filed on a cause of action of the alleged attempt of the defendants to alienate the suit schedule property to some third parties, but, not to the plaintiff who was the agreement holder, whereas, the present suit i.e., O.S.No.143/2013 is on the cause of action of non-performance of their promise under the

¶211

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Agreement dated 15.03.2010 by the defendants. As such, both the suits are on different causes of action.

¶214

Our Hon'ble Apex Court in Sucha Singh Sodhi (Dead) through Legal Representatives -vs- Baldev Raj Walia and

¶215

another, reported in (2018) 6 SCC 733, with respect to Order II Rule 2 of CPC was pleased to observe that, though the first suit filed in the matter before it was claiming the relief of permanent injunction restraining the defendant from interfering with his possession over suit property, the second suit filed was claiming the relief of specific performance for Agreement for Sale of suit property. Thus, it held that second suit was not hit by Order II Rule 2 of CPC. It observed that relief of permanent injunction and specific performance are not identical, causes of action are separate and reliefs/claims governed by separate Articles of Limitation Act, 1963.

¶216

In the light of the above, even though prima facie , the present suit appears to be barred under Order II Rule 2 of CPC, more particularly, in the light of judgment of Hon'ble Apex Court in Pulla Rao's case (supra),

¶217

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however, the above observed special facts of the present case does not allow to hold the suit as not maintainable under Order II Rule 2 of CPC. As such, the primary and main argument of learned counsel for the appellants on the said point that present suit is barred under Order II Rule 2 of CPC, is not acceptable.

¶220

The plaint averments, as well the evidence of PW-1 is that the Agreement for Sale at Ex.P-1 though was between the present appellants as vendors and the present respondent as the vendee, however, according to the vendee-plaintiff, the vendor Nos.2, 3 and 4, who were defendant Nos.2, 3 and 4, were represented by their father and General Power of Attorney Holder Sri Ramakrishna Shetty, son of Koraga Shetty, in whose favour, defendant Nos.2 to 4 have executed a General Power of Attorney before Notary Public at Bengaluru on 24.01.1996. The vendor No.1, who is the appellant No.1 (defendant No.1), represented herself in the said

¶221

Agreement for Sale at Ex.P-1. As observed above, among the four defendants, defendant No.3 alone had filed

¶222

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¶224

the written statement, whereas, defendant No.1 did not file written statement and defendant Nos.2 and 4 remained ex parte. The defendant No.3 both in her written statement, as well through the evidence of DW-1, whom she examined as her Power of Attorney, contended that, no General Power of Attorney, much less, as per Ex.P-1, was executed by her in favour of her father Sri Ramakrishna Shetty. Thus, the denial of execution of General Power of Attorney was only by one among the four defendants.

¶225

The General Power of Attorney alleged to have been executed by defendant Nos.2, 3 and 4 in favour of their father Sri Ramakrishna Shetty was admittedly not produced by the plaintiff either in its original or in the form of its copy. It is only based upon the recital in Ex.P-1, the plaintiff mainly contends that said Sri Ramakrishna Shetty was the General Power of Attorney Holder of defendant Nos.2, 3 and 4.

¶226

The plaintiff as PW-1 in his evidence, in examination-in-chief, has reiterated that defendant Nos.2

¶227

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¶229

to 4 who were also the parties to the Agreement for Sale at Ex.P-1, were being represented by their father - Power of Attorney Holder Sri Ramakrishna Shetty. The defendant No.1 - Smt.Rajeevi is the wife of said Sri Ramakrishna Shetty and the mother of defendant Nos.2, 3 and 4.

¶230

In his cross-examination, when questioned about the plaintiff not securing the original of the General Power of Attorney, he stated that a Photostat copy of the said General Power of Attorney was given to him by retaining the original of it with themselves. The said Photostat copy has been kept by him in his house. He also stated that, at the time of entering into agreement, he did not feel like collecting the original of the General Power of Attorney, on the other hand, since they gave him a Photostat copy of the same, he kept quite. He also stated that the said copy of General Power of Attorney along with copy of Partition Deed were given to him while executing the Agreement for Sale.

¶231

These statements of PW-1 were elicited by none else than from defendant No.3 side and the truthfulness of

¶232

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the statements made by PW-1 as above were not denied specifically in the cross-examination of PW-1. Since the statement of PW-1 that he was given with a copy of the General Power of Attorney, as such, he did not feel like demanding for giving the original General Power of Attorney to himself having remained undenied, the same cannot be taken as not believable.

¶235

Learned counsel for the respondent during the course of the argument submitted that the photocopy of the said General Power of Attorney which was in the custody of the plaintiff was submitted to the trial Court along with a memo dated 17.09.2016 and same finds a place at Page Nos.154 to 158 of the trial Court records. Though a perusal of the trial Court records shows the presence of such a memo and a photocopy of the General Power of Attorney, still, the fact remains that the said General Power of Attorney was not marked as a documentary evidence, at least, as a secondary evidence, as submitted by the learned counsel for the appellants. Hence, the said document need not be taken up and

¶236

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considered as a valid piece of evidence in support of the plaintiff. However, it has to be seen as to whether the plaintiff has made out a case, at least, for preponderance of probabilities about the existence of such General Power of Attorney.

¶239

In order to prove the existence and execution of said General Power of Attorney, the plaintiff got summoned the alleged Power of Attorney Sri Ramakrishna Shetty, son of Koraga Shetty. After producing a photocopy of the said General Power of Attorney dated 24.01.1996 along with an application under Order XVI Rule 1 and 2 read with Section 151 of CPC, the plaintiff sought for a direction to said Sri Ramakrishna Shetty, to produce the original General Power of Attorney dated 24.01.1996 and to lead evidence on the said document.

¶240

Considering the said application made, the trial Court issued the process to said Sri Ramakrishna Shetty, who appeared before the trial Court and he was examined as PW-2 from the plaintiff's side. However, the said witness admitting his relationship as husband of defendant No.1 and father of

¶241

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defendant Nos.2, 3 and 4, stated that no General Power of Attorney was executed by his children in his favour. Thus, he did not support the case of the plaintiff in his examination-in-chief.

¶244

Upon the request, the plaintiff was permitted to treat this witness as hostile and to cross-examine him. In his cross-examination from the plaintiff's side, the witness admitted a Partition Deed at Ex.P-16 and stated that the properties shown in the said Partition Deed had come to the share of his wife and children. However, he expressed his ignorance about he executing the said Partition Deed as a Power of Attorney Holder for the present defendant Nos.2, 3 and 4, but, he did not deny that he was the Power of Attorney Holder for his three children in the said Partition Deed.

¶245

Similarly, when PW-2 was confronted with Ex.P-15, suggesting to the witness that it was a Sale Deed executed by his wife and children i.e., all the defendants herein, selling 6 cents of land in Survey No.26-28(P) in Bajal Village of Mangaluru Taluk in favour of one Mr.Yathish

¶246

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Shetty, for a valuable consideration and that PW-2 has executed the said Sale Deed as a Power of Attorney Holder of his three children (defendant Nos.2, 3 and 4 herein), the witness expressed his ignorance about the same. When his photograph in the certified copy of the alleged Sale Deed, which is at Ex.P-15, is shown and confronted to him, suggesting him that he was one among the Executant of the said document, he did not deny that the same was not his photograph. However, he expressly identified the photograph of his wife in the said Sale Deed as one among the Executant of the said Sale Deed, which was marked at Ex.P-15(a).

¶249

Incidentally, in the said Sale Deed at Ex.P-15, PW-2 Sri Ramakrishna Shetty was shown as the General Power of Attorney for the present defendant Nos.2, 3 and 4, who are his children (major by age) and the said Power of Attorney was shown to have executed by the Executants (defendant Nos.2, 3 and 4) before one Mr.S.Sangameshwar, a Notary at Bengaluru, on 24.01.1996. Incidentally, in the General Power of

¶250

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Attorney that is referred in the Agreement for Sale, which

¶253

is under consideration in this matter and marked as Ex.P-1 also, the very same General Power of Attorney is referred and mentioned.

¶254

PW-2 was not cross-examined from the defendants' side.

¶255

A careful analysis of the evidence of PW-2 in the light of the pleadings of the parties and Exs.P-1, P-15 and P-16 would go to show that the relationship of PW-2 with defendants as defendant No.1 is wife and defendant Nos.2, 3 and 4 as the children of PW-2, remains an admitted fact. PW-2 has admitted about the partition that has taken place as per Ex.P-15. He has not denied that he represented his three children (defendant Nos.2 to 4) as their General Power of Attorney Holder in the said Partition Deed, which is at Ex.P-16. Even in the said document also, it is shown that PW-2 was appointed as Attorney for defendant Nos.2, 3 and 4 under a General Power of Attorney shown to have been executed by defendant Nos.2, 3 and 4 in the presence of

¶256

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Sri S.Sangameshwar at Bengaluru on 24.01.1996. Thus, it is acting upon the said Power of Attorney dated 24.01.1996, Ex.P-15, Ex.P-16 and Ex.P-1 are shown to

¶259

have been executed by the said Power of Attorney Holder Sri Ramakrishna Shetty.

¶260

Since PW-1 was not cross-examined from defendant

¶261

No.3 side and the partition of the property as per Ex.P-15 is not denied from the defendant No.3 side, it stands established that Sri Ramakrishna Shetty, father of defendant Nos.2, 3 and 4, was appointed as General Power of Attorney for defendant Nos.2, 3 and 4 and he represented his children, accepted the property under the Partition as per Ex.P-16 and has executed a registered Sale Deed as its Executant on behalf of his three children as evidenced in Ex.P-15. In both, Ex.P-15 and Ex.P-16, PW-2 Sri Ramakrishna Shetty is shown as a Holder of General Power of Attorney. Ex.P-15 is a registered Sale Deed whereunder the present defendants have sold a bit of immovable property measuring 6 cents in favour of the purchaser Mr.Yathish Shetty therein. Thus, it shows that

¶262

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PW-2 Sri Ramakrishna Shetty had the power to sell the properties of the defendants that has fallen to the share of defendant Nos.2, 3 and 4 in the Partition Deed at Ex.P-16.

¶265

The said Partition Deed at Ex.P-16 shows that the present suit schedule properties were also the properties that had fallen to the share of the present defendants.

¶266

Thus, it is most probable and appears to be nearer to the truth that under the same General Power of Attorney, said Sri Ramakrishna Shetty has entered into an Agreement for Sale as per Ex.P-1 with the plaintiff. As such, though production of the General Power of Attorney is generally appreciated and required, however, the present facts and circumstances of the case would not

¶267

take away the case of the plaintiff merely because of non-production of the General Power of Attorney standing in favour of PW-2 - one of the Executant of the Agreement for Sale at Ex.P-1. As such, the argument of learned counsel for the appellants that non-marking of the General

¶268

Power of Attorney is fatal to the case of the plaintiff is not acceptable.

¶269

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Learned counsel for the appellants in his argument also contended that the plaintiff has not proved the Agreement for Sale dated 15.03.2010 said to have been executed by defendants in his favour agreeing to sell the plaint schedule property. Apart from stating that the defendants have not executed the Agreement for Sale at Ex.P-1, he also submitted that the plaintiff as PW-1 in his cross-examination has stated that the price for the alleged land for sale was not decided on the base price per cent of the land, on the other hand, in total, a sum of `15 lakhs is

¶272

shown to have been agreed between the parties. This creates a doubt with respect to the alleged agreement at Ex.P-1. He also submitted that since the said document at Ex.P-1 does not bear the signatures of any witnesses, though it is not mandatory, still, it creates a doubt in the case of the plaintiff.

¶273

Per contra, learned counsel for the respondent in his argument submitted that there is no specific denial of the signatures of defendant No.1 and General Power of Attorney Holder in Ex.P-1. However, the evidence of PW-1

¶274

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that a sum of `2 lakhs has been paid to the General Power of Attorney Holder as an advance amount also establishes the execution of Ex.P-1. He further stated that for an Agreement for Sale, it is not mandatory that the witnesses should attest their signatures as witnesses to the document.

¶277

The pleading of the plaintiff, as well his evidence is that the defendants, upon whom the suit schedule property had come under a partition, had agreed to sell the suit schedule property to him for a total consideration of a sum of `15 lakhs, in which regard, the defendant No.1 by herself and defendant Nos.2, 3 and 4 through their General Power of Attorney Holder, who was none else than their father, had executed an agreement in favour of the plaintiff, which is at Ex.P-1. The defendant No.3 who alone has filed her written statement and examined her husband as her Power of Attorney Holder as DW-1, has denied any such agreement with the plaintiff for the sale of suit schedule property in his favour.

¶278

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¶280

The plaintiff as PW-1 apart from reiterating in his evidence that the defendants have executed the Agreement for Sale as per Ex.P-1 in his favour and have received a partial sale consideration amount of a sum of `2 lakhs, has also identified the signatures in Ex.P-1 stating that those signatures are of defendant No.1 for herself, Sri Ramakrishna Shetty as Power of Attorney Holder for defendant Nos.2, 3 and 4 and his signature. They were marked from Exs.P-1(a) to P-1(o). Interestingly, none of the signatures were denied in the cross-examination of PW-1, except suggesting a general denial that signatures found in Ex.P-1 were not that of the defendants. Therefore, it was for the defendants, particularly, the defendant No.3, who alone was the contesting defendant, to deny that those signatures were not of her mother and her father.

¶281

Secondly, PW-1 in his cross-examination has given the details as to when and how the negotiations with respect to sale of property took place. He has stated that the negotiations and talks for the sale of the suit schedule

¶282

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property in his favour by the defendants took place between him, first and third defendants and the husband of defendant No.1 Sri Ramakrishna Shetty (the Power of Attorney Holder for defendant Nos.2, 3 and 4). He also stated that defendant No.3 did not sign to Ex.P-1, however, her General Power of Attorney Holder has signed the said document. The said witness also stated that the said negotiations for sale took place about three to four days prior to the date of Ex.P-1. It was at that time only the defendants had told that a sum of `2 lakhs as an advance amount is to be given to them. All these statements have not been specifically denied in his cross-examination.

¶285

PW-1 has also stated that a sum of `2 lakhs as an advance amount towards sale transaction was given in the form of a cheque to said General Power of Attorney Holder Sri Ramakrishna Shetty and that he had no previous dealings with said Sri Ramakrishna Shetty. In his plaint, as well in his examination-in-chief, PW-1 has stated that the said cheque was bearing No.515467, dated

¶286

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16.03.2010, drawn on Vijaya Bank, Industrial Suburb, Mysuru Branch. He also stated that the defendants have encashed the said cheque given by him towards advance sale consideration.

¶289

Though PW-2 in his cross-examination and DW-1 has denied the receipt of any such amount as an advance amount towards sale consideration, however, the statement of account of one Sri Vijaya Krishna Naik, who is said to be the son-in-law of the plaintiff, with Vijaya Bank, Industrial Suburb, Mysuru Branch, for a period from 01.03.2010 to 31.03.2010, which is produced and marked

¶290

at Ex.P-14, shows a debit entry of a sum of 2 lakhs on 23.03.2010 as the amount paid to Ramakrishna Shetty through a cheque bearing No.515467. Thus, the evidence of PW-1 that a sum of 2 lakhs was paid to the defendants

¶291

as a partial sale consideration in the form of advance amount stands corroborated by Ex.P-14. Had the defendants not executed Ex.P-1 in favour of the plaintiff and had Sri Ramakrishna Shetty not executed Ex.P-1 as a Power of Attorney for defendant Nos.2, 3 and 4, he would

¶292

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not have received the said amount. There is nothing on

¶295

record either as a oral evidence or documentary to show that the said amount was received by Sri Ramakrishna Shetty towards other transaction. Though a suggestion was made to PW-1 in his cross-examination suggesting that with respect to a business transaction, a sum of 2 lakhs was given to Ramakrishna Shetty and a false document as per Ex.P-1 was got written, the witness has not admitted the said suggestion as true. On the other hand, by making the said suggestion, the defendants have admitted the receipt of 2 lakhs by Sri Ramakrishna Shetty and execution of the document as per Ex.P-1.

¶296

Interestingly, in the cross-examination of DW-1, to a suggestion made to the witness that the cheque number shown in the Agreement at Ex.P-1 as 515467, drawn on Industrial Suburb, Mysuru Branch, for a sum of `2 lakhs has been credited to the account of the payee therein, the witness has stated that he is not aware of the same. Thus, he has not denied that the said amount has

¶297

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been credited to the account of the payee, but, he has expressed his ignorance.

¶300

However, as could be seen in Ex.P-14 and as analysed above, the evidence of PW-1, corroborated by Ex.P-14, which is the Bank statement, shows that a sum of `2 lakhs has been paid to the General Power of Attorney Holder Sri Ramakrishna Shetty. PW-1 has also stated that the said cheque was issued from the bank account of his son-in-law Sri Vijaya Krishna Naik. The bank statement at Ex.P-14 also pertains to the account of Sri Vijaya Krishna Naik.

¶301

Thus, the execution of the Agreement and receipt of a partial consideration of a sum of `2 lakhs by the defendants towards sale value has been established by the plaintiff. Since there is no requirement that the sale value has to be fixed based upon per cent rate and since it is not mandatory that the Agreement of the nature at Ex.P-1 requires an attestation by the witnesses, the argument of learned counsel for the appellants that for the reason of not mentioning per cent price of the property and due to

¶302

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the absence of the attestation of witnesses to Ex.P-1, the

¶305

alleged sale transaction creates a doubt, is not acceptable.

¶306

Learned counsel for the appellants as a last point of his argument submitted that the plaintiff has neither pleaded his readiness and willingness to perform his part of the contract nor proved the same by mentioning about the same in his evidence.

¶307

The said argument of learned counsel for the appellants is also not acceptable for the reason that the plaintiff in his pleading, specifically and categorically has stated that he has always been ready and willing to perform his part of the contract. He has also stated that, he visited the defendants requesting them to execute the Sale Deed, however, they did not show their interest to execute the Sale Deed. He has also stated that, therefore, since there was no positive response from the defendants regarding the execution of the Sale Deed, during the second week of July 2011, he went to the house of defendant No.1 in order to request the defendants to execute the Sale Deed as agreed to, but, to his surprise,

¶308

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he saw that the defendants were discussing with the third

¶311

party about they selling the plaint schedule property to him. This prompted him to file a suit for injunction against the defendants in O.S.no.583/2011. The plaintiff reiterated the same even in his evidence as PW-1 also. He has stated that, apart from he requesting over the telephone and by personally visiting and requesting the defendants to execute the Sale Deed, had also written a letter to them on 25.08.2011 calling upon them to execute the Sale Deed in his favour by accepting the balance sale consideration. He has produced a copy of the said letter at Ex.P-5 stating that he has sent those letters through Registered Post, as well through courier. The witness has produced two postal receipts at Exs.P-6 and P-7 and three courier receipts at Exs.P-8, P-9 and P-10. He has also produced a reply by Senior Superintendent of Post Offices, Mangaluru Division, Mangaluru, dated 22.08.2012, which go to show that at the enquiry of the plaintiff about delivery of his postal articles sent under Exs.P-6 and P-7, the Superintendent of Posts has stated that one article

¶312

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was delivered to Sri Ramakrishna Shetty and another article was delivered to Smt.Rajeevi, wife of Sri Ramakrishna Shetty as per the address shown on the postal articles, on 27.08.2011.

¶315

According to the plaintiff, none of the defendants responded to the said letter sent to them. Thus, expressing his readiness and willingness to perform his part of promise and requesting the defendants to perform their part of the obligation under the Agreement, the plaintiff had even sent a letter by Registered Post and courier to them, however, the defendants have not responded to the said letter in any manner. Thus, the plaintiff throughout has contended and shown that he has always been ready and willing to perform his part of obligation, for which, there was no proper response from the defendants. As such, the last point of argument of learned counsel for the appellants also is not acceptable.

¶316

Since it is considering the materials placed before

¶317

it, including oral and documentary evidence led by both side in their proper perspective, the trial Court has arrived

¶318

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at a finding answering issues framed by it in the affirmative and decreeing the suit of the plaintiff, I do not find any reason to interfere in it.

¶321

The defendant No.3 in her written statement has taken a contention that as on the date when the suit was filed, the suit property valued more than 1 crore. A suggestion to that effect was also made to PW-1 in his cross-examination, however, the witness has not admitted the said suggestion as true. On the other hand, he has stated that, as on the date of the Agreement, the market value of the suit schedule property was what was shown in the Agreement at Ex.P-1. DW-1 in his evidence has stated that the price of the property per cent was not less than 40,000/- in the year 2010, however, it was denied in his cross-examination. Except the self-serving statement by

¶322

defendant No.3, no document was produced from her to show that the suit schedule property was worth more than 1 crore or 40,000/- per cent as in the year 2010, still an attempt was made to show that the property was worth more than the agreed sale consideration.

¶323

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Barring that the defendant No.3 who alone had filed her written statement and led evidence, has not made any attempt to show that she would be put to more inconvenience in case if the specific performance of the agreement is ordered in favour of the plaintiff. No doubt, granting of the relief under Section 20 of the Specific Relief Act, 1963 is discretionary, however, the said discretion is to be exercised very carefully and in reasonable circumstances only and it should not be exercised arbitrarily and without any convincing reasons.

¶326

From the above analysis, it is clear that, at the

¶327

time of entering into an agreement itself, the defendants were aware of the nature of the document and that in the case of the agreement is executed, they had to part with the possession with the title over the suit schedule property in favour of the plaintiff at a future date. As such, even if any hardship or any inconvenience is pressed in favour of the defendants, the same was not unexpected. Without knowing the hardship which they may have to face, since they have executed an Agreement at Ex.P-1

¶328

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and thereafter also, could able to continue in possession of

¶331

the suit schedule property as the dispute is sub judice , the defendants had sufficient time to possess and continue in suit schedule property despite the plaintiff being the Agreement Holder as a purchaser of the said property. Still, considering the fact that the suit schedule property though is shown to be three bits of wet agricultural land, in total measuring 1 acre 34 cents, located in Mangaluru Taluk, which is one of the most developing city centered Taluk in the State of Karnataka, I am of the view that the valuation of the suit schedule property is escalating every year considerably. As such, I am of the view that, to do complete justice, if the plaintiff is directed to pay a further sum of 10,00,000/- to the defendants towards the sale consideration, which will be in addition to the balance sale consideration of a sum of 13,00,000/- payable by the plaintiff to the defendants under the Agreement at Ex.P-1, the same would meet the ends of justice.

¶332

Our Hon’ble Apex Court in the case of Basavaraj

¶333

Vs. Padmavathi and another, reported in AIR 2023

¶334

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SUPREME COURT 282, has arrived at such a finding. In order to do complete justice in the said case, the Hon’ble Apex Court directed the plaintiff to pay a further sum of

¶337

`10,00,000/- towards the sale consideration therein.

¶338

Thus, it is only to the extent of directing the plaintiff to pay a further sum of `10,00,000/- only, to the defendants, the impugned judgment and decree warrants interference at the hands of this Court.

¶339

Accordingly, I proceed to pass the following:

¶340

ORDER

¶341

[i] The Appeal filed by the defendants

¶342

(appellants) is allowed in-part ;

¶343

[ii] The impugned judgment and decree

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dated 24.10.2016, passed by the learned II Additional Senior Civil Judge, Mangaluru, Dakshina Kannada, in O.S.No.143/2013, stands modified to the extent that the plaintiff shall pay a sum of `13,00,000/- (Rupees Thirteen Lakhs only) towards the balance sale

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consideration and a further sum of `10,00,000/(Rupees Ten Lakhs Only) to the defendants within three months from the date of this judgment;

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[iii] The defendants are directed to execute and register at the cost of the plaintiff, a regular Sale Deed in respect of the suit schedule property within three months from the date of this judgment, however, after receiving the above said sum of 13,00,000/+ 10,00,000/= `23,00,000/(Rupees Twentythree Lakhs Only);

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[iv] The plaintiff is at liberty to execute the decree in accordance with law, in the event of the defendants’ failure to execute the Sale Deed in his favour, within three months from the date of the judgment;

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[v] Rest of the terms of the impugned judgment and decree remains unaltered;

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