Allowed

M/S. Fantasy Builders and Engineers Pvt. Ltd., v. Sri. K. L. Srinivasa Murthy

Karnataka HC22 Feb 2024RFA/1271/2018

Case brief

AI extract

What is this about?

In two resid fumigation appeals, the High Court set aside a decree of specific performance passed by the Trial Court. The court held that the Trial Court failed to comply with a prior order directing it to try two separate suits concerning the same property simultaneously and ideally by common judgment. Consequently, the appeals were allowed, and the matter was remitted to the Trial Court for prop

What did the court decide?

Impugned judgment and decree set aside; matter remitted to Trial Court for disposal of two suits together as per earlier High Court order.

M/S. Fantasy Builders and Engineers Pvt. Ltd., Vs Sri… — Property and Title | Karnataka HC (2024)

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RFA No.1271/2018 C/W RFA No. 1266/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR.P.S.DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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RFA NO. 1271 OF 2018 C/W RFA NO. 1266 OF 2018 (SP)

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IN RFA No. 1271/2018

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BETWEEN:

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M/S FANTASY BUILDERS AND ENGINEERS PVT. LTD., PRESENTLY AT, S.N. PRIDE, 5/6, 1^ST CROSS MADIWALA NEW EXTENSION BENGALURU-560 068 REP. BY ITS MANAGING DIRECTOR MR. MOHAMMED NAZEER AHMED FORMERLY AT NO.8, ARCO TOWERS LALBAGH ROAD, BENGALURU-560 027 …APPELLANT

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(BY SHRI. D.L.N. RAO, SENIOR ADV. FOR SHRI. C. SRINIVASA, ADV.)

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AND:

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SRI. K.L. SRINIVASA MURTHY AGED ABOUT 86 YEARS SRI. LAXMINARAYANA SETTY R/AT FLAT NO. 402 SREE POORNA PRAJNA APARTMENTS NO.347/2, GANGADHAR LAYOUT VIJAYANAGAR, BENGALURU-560 040.

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SRI. T.R. SAMPATH KUMAR S/O LATE SRI. RAJAGOPAL CHETTIAR AGED ABOUT 82 YEARS R/AT NO. 97, DISPENSARY ROAD CIVIL STATION, BENGALURU-560 025 SINCE DEAD BY HIS LRs.

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S. DEVARAJ AGED ABOUT 52 YEARS S/O LATE SRI. T.R. SAMPATH KUMAR R/AT NO. 92, DISPENSARY ROAD CIVIL STATION BENGALURU-560 025

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S. GOPIMURALI S/O LATE SRI. T.R. SAMPATH KUMAR AGED ABOUT 48 YEARS R/AT NO. 92, DISPENSARY ROAD CIVIL STATION, BENGALURU-560 025

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SMT. SRILAKSHMI AGED ABOUT 49 YEARS S/O LATE SRI. T.R. SAMPATH KUMAR

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SMT. GEETHA S. BABU AGED ABOUT 47 YEARS S/O LATE SRI. T.R. SAMPATH KUMAR

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SMT. ANURADHA S/O LATE SRI. T.R. SAMPATH KUMAR AGED ABOUT 42 YEARS

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SMT. RANGANAYAKI AGED ABOUT 43 YEARS S/O LATE SRI. T.R. SAMPATH KUMAR

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SMT. MOHANA KUMARI AGED ABOUT 37 YEARS S/O LATE SRI. T.R. SAMPATH KUMAR RESPONDENTS NO. 5 TO 8 ARE ALL R/AT NO.97 DISPENSARY ROAD, CIVIL STATION BENGALURU-560 025

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T.R. UTHAMANAMBI SINCE DEAD BY HIS LR

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9(A) U. VENKATESH S/O LATE T.R. UTHAMANAMBI AGED ABOUT 55 YEARS R/O NO. 30/2, LAKSHMANA MUDALIAR STREET

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SHIVAJINAGAR, BENGALURU-560 001

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9(B) T.U. RAMANUJAM S/O LATE T.R. UTHAMANAMBI AGED ABOUT 53 YEARS R/O NO. 1/1E, 3^RD STREET DHARMARAJA KOVIL STREET CROSS SHIVAJINAGAR, BENGALURU-560 001

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9(C) SMT. C. PADMAVATHI D/O LATE T.R. UTHAMANAMBI AGED ABOUT 49 YEARS R/AT NO. 14, NANDANAM SINGH LANE NARAYANA PILLAI STREET CROSS SHIVAJINAGAR, BENGALURU-560 001

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…RESPONDENTS

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(BY SHRI. D.R. RAVISHANKAR, SENIOR ADV. FOR SHRI. RAMU SREEKANTAIAH, ADV. FOR R1; SHRI. S.K.V. CHALAPATHY, SENIOR ADV. FOR SHRI. S.V. SRINIVAS, ADV. FOR R2 AND R3; R4 TO R9 (A) TO (C) ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.06.2018 PASSED IN OS.NO.3352/1993 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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IN RFA No. 1266/2018 BETWEEN:

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SRI. UTTAMANAMBI SINCE DEAD BY LRs.

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1(A) U. VENKATESH S/O LATE UTTAMANAMBI AGED ABOUT 55 YEARS R/AT NO.30/2 LAKSHMANA MUDALIAR STREET, SHIVAJINAGAR BANGALORE-560 001.

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1(B) T.U. RAAMANUJAM S/O LATE UTTAMANAMBI

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RFA No.1271/2018

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C/W RFA No. 1266/2018

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AGED ABOUT 53 YEARS R/AT NO.1/1E 3^RD STREET DHARMARAJA KOVIL ST. CROSS SHIVAJINAGAR, BANGALORE-560 001. 1(C) SMT. C. PADMAVATHI D/O LATE UTTAMANAMBI AGED ABOUT 49 YEARS R/AT NO.14, NANDARAM SINGH LANE NARAYANA PILLAI STREET CROSS SHIVAJINAGAR BANGALORE-560 001. 2. SRI. S. DEVARAJ S/O LATE T.R. SAMPATH KUMAR R/AT NO.92 DISPENSARY ROAD CIVIL STATION, BANGALORE 3. S. GOPIMURALI S/O LATE T.R. SAMPATHKUMAR AGED 44 YEARS R/AT NO.92 DISPENSARY ROAD CIVIL STATION, BANGALORE … APPELLANTS (BY SHRI. S.K.V CHALAPATHY, SENIOR ADV. FOR SHRI. S.V. SRINIVAS, ADV.) AND: 1. SRI. K.L. SRINIVASA MURTHY S/O LAKSHMINARAYANA CHETTY AGED ABOUT 75 YEARS R/AT NO.402, SREE POORNA PRAJNA APARTMENTS, NO.37/2 GANGADHAR LAYOUT, VIJAYANAGAR BANGALORE-560 040. 2. SMT. SRILAKSHMI D/O LATE T.R. SAMPATHKUMAR 3. SMT. GEETHA S. BABU AGED ABOUT 51 YEARS D/O LATE T.R. SAMPATHKUMAR 4. SMT. ANURADHA

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AGED ABOUT 46 YEARS D/O LATE T.R. SAMPATHKUMAR

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SMT. RANGANAYAKI AGED ABOUT 47 YEARS D/O LATE T.R. SAMPATHKUMAR

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SMT. MOHANAKUMARI AGED ABOUT 39 YEARS D/O LATE T.R. SAMPATHKUMAR

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ALL ARE RESIDING AT NO.97 DISPENSARY ROAD, CIVIL STATION BANGALORE-560 001 …RESPONDENTS

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(BY SHRI.D.R.RAVISHANKAR, SR. ADV. FOR SHRI. SARAVANA, ADV. FOR R1; R2 TO R6 ARE SERVED)

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THIS RFA FILED UNDER SECTION 96 OF THE CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 07.06.2018 PASSED IN O.S.NO.3352/1993 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE, BANGALORE CITY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.01.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, T.G. SHIVASHANKARE GOWDA J. , PRONOUNCED THE FOLLOWING:-

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JUDGMENT

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In these appeals, the legal representatives of defendant No.1 and defendant No.2 and a third party M/s.Fantasy Builders and Engineers Pvt.Ltd., have

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challenged the judgment and decree dated 07.06.2018 passed in O.S.No.3352/1993 on the file of the XI Additional City Civil Judge, Bangalore City (CCH No.8) (for brevity 'the Trial Court') decreeing suit of the plaintiff for specific performance.

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For the sake of convenience, parties shall be referred to as per their status before the Trial Court.

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Brief facts of the case are, defendants are the absolute owners in possession and enjoyment of 6 acres of land in Sy.No.92 of Singanasandra village, Bangalore South Taluk. For their legal necessity, defendants offered to sell 3 acres of converted land on southern portion of said 6 acres (for short 'the suit property' ) and the plaintiff agreed to purchase the same for a consideration of Rs.18,90,000/- and parties have entered into an agreement to sell on 03.01.1990. The defendants have received advance of Rs.5 lakhs from the plaintiff. As per Clause No.5

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of the agreement, defendants have agreed to transfer the property free from all encumbrances, execute the sale deed within four months from the date of agreement and to deliver the possession to the plaintiff or his nominees on the date of registration of the sale deed.

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3.1. As per Clause 6(a) of the agreement, defendants have permitted the plaintiff to form the sites in the suit property, the defendants have also agreed to execute the sale deed either in the name of the plaintiff or his nominee and agreed to cooperate with the plaintiff in getting necessary permission from the competent authorities by furnishing necessary documents and deeds. Thereafter they did not co-operate, avoided the plaintiff from getting necessary permission from the competent authorities to complete the sale transaction. They failed to furnish title deeds and other documents for getting necessary sanction.

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Inspite of several requests and demand, defendants on one or the other reason postponed their part of duty. The plaintiff has written several letters and reliably learnt that since the prices of the lands have gone up, they were not willing to sell the suit property at the agreed rate.

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3.2. Plaintiff was always ready and willing to perform his part of contract, but due to noncooperation by the defendants, the sale transaction could not be concluded. Plaintiff issued a notice to the defendants on 26.04.1993 calling upon them to execute the sale deed by receiving balance consideration. The defendants in their reply notice, blamed the plaintiff for not getting the permission early. Further in their reply notice stipulated eight days' time for the plaintiff to get registration of the sale deed by paying balance consideration, knowing fully well that permission was not obtained and they also indicated that if the same is not complied within

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the said period, the agreement would get cancelled. The said reply is only an eye-wash, with no intention to comply with the terms of the contract. The plaintiff has also issued a rejoinder to the defendants expressing his ready and willingness to perform his part of contract and requested the defendants' cooperation in getting permission and to complete the sale transaction, which was not responded by the defendants.

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3.3. As per Clause No.6(e) of the agreement, defendants have no power to rescind the agreement unilaterally. The agreement is in force and enforceable. With these averments, the plaintiff has filed the present suit.

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Defendants have opposed the suit by filing

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written statement interalia admitting the agreement. It is their defence that, from the date of agreement till they received the notice from the plaintiff, they

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were requesting him to take necessary steps to get permission, pay balance consideration and get the sale deed registered. Defendants were ready to execute the sale deed on the date of agreement itself and even subsequently. Plaintiff did not obtain the permission from the concerned authorities, more than 20 times defendants approached him, but he pleaded his inability on the ground of having no money. Plaintiff postponed the dates to complete the sale transaction from the beginning though the period of time agreed was four months and the plaintiff did not perform his part of contract.

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4.1. Notice issued by the plaintiff was suitably

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replied on 28.04.1993, offering him to obtain the sale deed within eight days by paying balance consideration, but he did not come forward. By notice, they have cancelled the agreement and therefore, plaintiff had no right to file the present suit. The agreement is dated 03.01.1990, the suit

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has been filed on 31.05.1993 and it is barred by time. At no point of time, plaintiff was ready and willing to perform his part of the contract. Inspite of several opportunities provided even in the year 1993, he has not made any efforts to obtain the sale deed. Plaintiff has not placed any material to show that he is ready and willing to perform his part of contract, he did not have sufficient funds to complete the sale transaction. He has not deposited money in the court even after filing the suit. The contract is unenforceable. Plaintiff was fully aware that he cannot enforce the contract. Out of 6 acres 1 gunta, only southern portion measuring 3 acres was agreed to be sold; the property was not measured and demarcated, now it cannot be identified to perform the contract.

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4.2. After the agreement, the plaintiff never

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approached the defendants for subscribing their

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signatures to any of the applications or forms to submit to the competent authorities.

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4.3. Under the Income Tax Act, within 15 days

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from the date of agreement, plaintiff ought to have filed an application to the competent authority for obtaining 'no objection' under Rule 37(1), but he has not filed any application for clearance. The suit property cannot be sold to him without 'no objection' from the Income Tax authorities as sale price is exceeding Rs.10,00,000/-. As per Clause No.4 of the agreement, it is for the plaintiff to take all necessary clearance at his cost, but he did not do any act as he was not ready and willing to perform his part of contract.

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4.4. The plaintiff did not apply to the Urban Land Ceiling Authority seeking exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the Act of 1976')

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for grant of permission, the defendants cannot alienate the land exceeding the limit and the contract becomes unenforceable.

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4.5. The plaintiff was required to form sites as

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per Clause 6(a) of the agreement and not formed any layout or sites and the question of defendants co-operating for selling the sites to anybody does not arise. The land was converted for the industrial purpose. Change of use of land was also not obtained by the plaintiff for forming the residential layout, thereby the agreement is vitiated and the plaintiff is not entitled for the relief of specific performance.

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4.6. As the defendants have rescinded the

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contract and forfeited earnest money paid by the plaintiff, there is no contract in existence at the time

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of filing of suit and the suit has to fail.

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Based on the above pleadings, Trial Court

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framed the following issues and additional issues:

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"1. Whether the plaintiff proves that he has been ever ready and willing to perform his part of contract?

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2. Whether the plaintiff proves that he is entitled for the specific performance of the agreement of sale?

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3. Whether the plaintiff proves that he is entitled for vacant possession of the suit property?

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4. Whether the defendants prove that the suit is barred by limitation?

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5. What decree or order?

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ADDITIONAL ISSUES:

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1. Whether the contract dated 3.1.1990 is hit by the provisions of Section.8 of the Indian Contract Act?

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2. Whether the defendants prove that the contract has become infructuous and unenforceable for the reasons stated in paras 8 and 10 of the written statement?

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3. Whether the defendants prove that they have rescinded the contract and forfeited the earnest money for the reasons stated in para No.23 of the written statement?"

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Plaintiff examined himself as PW-1, marked

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40 documents as per Exs.P1 to P40. The defendant

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No.2 was examined as DW-1, marked 2 documents as per Exs.D1 and D2. The Trial Court after hearing both parties answered issue Nos.1 to 3 in the affirmative, issue No.4 and additional issue Nos.1 to 3 in the negative and decreed the suit directing the defendants to execute the sale deed within 60 days from the date of the order after receiving the balance sale consideration from the plaintiff.

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Aggrieved by the same, defendant No.2 and legal representatives of defendant No.1 have filed R.F.A.No.1266/2018 whereas a 3^rd party M/s.Fantasy Builders and Engineers Pvt.Ltd., have filed R.F.A.No.1271/2018.

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During the pendency of the appeal, defendant No.2 has died and his legal

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representatives are brought on record.

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Heard the arguments of Sri D.L.N.Rao,

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learned Senior Counsel supported by Sri C.Srinivasa,

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learned counsel for the third party appellant, Sri.D.R.Ravishankar, learned Senior Counsel supported by Sri.Ramu Sreekantaiah, learned counsel for the plaintiff, Sri.S.K.V.Chalapathy, learned Senior counsel supported by Sri.S.V.Srinivas for defendant Nos.1(A) and (B) and 2 (A), (B) and (C).

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Sri.S.K.V.Chapapathy, learned Senior Counsel contended that after execution of the agreement, plaintiff did not perform his obligation as contemplated under the several clauses of the agreement. The plaintiff is required to pay balance consideration of Rs.14.90 lakhs within four months from the date of agreement. The land agreed to be sold was an industrial land. Plaintiff wanted to form a residential layout for which he was required to obtain conversion to residential use, but he did not obtain. The plaintiff admits his obligation to get the land converted and to obtain the sale deed within

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four months from the date of agreement. There is no evidence before the Court to show that the defendants have not co-operated with the plaintiff in getting the land converted to residential layout. The plaintiff has not applied for conversion. Plaintiff is required to obtain 'no objection' from the Urban Land Ceiling authorities under Section 28 of the Act for registration of the suit property. Under Section 269UC of the Income Tax Act, the plaintiff is required to submit to the Income Tax Authorities, the draft sale deed seeking permission. Unless permission is accorded by the Income Tax Department, registration could not have been done. The plaintiff is required to obtain approval under Section 14(3) of the Karnataka Town and Country Planning Act, 1961 for conversion of the land from industrial purpose to residential purpose.

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10.1. It is further contended that, there is no

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obligation on the part of the defendants to perform

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any part of contract except attesting forms and applications. No such request was made by the plaintiff to sign the documents. The plaintiff is required to pay balance sale consideration of Rs.14.90 lakhs. At no point of time, he has shown to the defendants or offered any payment. The availability of funds with the plaintiff is never disclosed to the defendants. Plaintiff expressed his inability to obtain permission from the concerned authorities for want of funds. The defendants have placed conclusive material to show non-availability of the funds in the hands of the plaintiff after execution

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of the agreement. Plaintiff has to prove his continuous ready and willingness from the date of agreement till the date of suit, even after filing of the suit till today, the conduct of the plaintiff did not demonstrate it.

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10.2. The first notice was issued by the plaintiff

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after completion of three years from the date of

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agreement. By that time three years had lapsed and the suit is barred by time. In the reply notice, defendants offered to execute the sale deed within 8 days, but the plaintiff did not come forward.

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10.3. The suit was dismissed for nonprosecution on 04.02.2007. Plaintiff filed miscellaneous petition seeking restoration of the suit. By order dated 25.08.2010, suit was restored after three years. The agreement was made on 03.01.1990, the suit was filed on 31.05.1993 and the impugned judgment was passed on 07.06.2018 i.e., after 28 years of the agreement. The value of the property has increased exponentially. Plaintiff by paying only Rs.5 lakhs cannot enforce the agreement. The Trial Court has erroneously decreed the suit instead of dismissing for non-performance on the part of the plaintiff and sought for interference.

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Shri D.L.N.Rao, learned Senior Counsel

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contended that plaintiff after entering into an agreement with the defendants did not perform his part of contract. He was required to obtain several permissions for conversion of industrial land for residential purpose, form layout. He was also required to identify the prospective buyers and get the sale deed executed from the defendants in their favour. Plaintiff was also required to obtain permission from the Income Tax Authorities for registration of the sale deed. Though the sale consideration was Rs.19.8 lakhs, advance paid was only Rs.5 lakhs on 03.01.1990 and the suit is filed after period of limitation.

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11.1. The third party is the agreement holder

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from the defendants to purchase the suit property and he has instituted the suit in O.S.No.26186/2007 for specific performance. The third party has also filed I.A.No.12 in the instant suit to implead himself

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as one of the parties. The said application was rejected by the Trial Court by order dated 05.03.2014. It was challenged before this Court in W.P.No.24132/2014. The plaintiff, defendant and the third party are all parties to the said proceedings. After hearing both sides, by order dated 14.07.2014, this Court has directed O.S.No.26186/2007 and O.S.No.3352/1993 shall be transferred to CCH-8 with a direction that both the suits shall be tried simultaneously and to dispose of by common judgment. In utter violation of the order of this Court, both the suits were not tried together and common judgment is not passed.

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11.2. In the impugned judgment, the order of this Court in writ petition is not referred and the third party is prevented from getting adjudication of the claim for specific performance against the defendants and he was prevented from assisting the Court effectively for proper adjudication of the suit.

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Behind the back of the third party, the suit has proceeded with. The suit of the third party in O.S.No.26186/2007 is still pending before the Additional City Civil Court (CCH-8); unless both the suits are heard together and common judgment is passed by Single Judge, it will cause irreparable damage to the third party.

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11.3. The impugned order is without application of mind, without following the directions of this Court and liable to be set aside and the parties have to be directed to go before the Civil Judge for disposal of both suits together by common judgment in order to meet the ends of justice.

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Per contra, Sri.D.R.Ravishankar, learned Senior Counsel has argued that the agreement contemplates certain conditions against the defendants for conclusion of transaction. The reciprocal process of the ready and willingness

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comes only after the income tax clearance. The agreement is of the year 1990, the suit is filed in the year 1993. The solvency of the plaintiff is not in dispute till filing of the written statement.

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12.1. Ex.P39 is the agreement. Under the agreement, plaintiff has paid advance of Rs.5 lakhs and agreed to pay the balance of sale consideration at the time of execution of the sale deed. Defendants are required to extend their assistance for obtaining necessary permission from the authorities, but they did not do so. Clauses (7) and (8) of the agreement are with regard to the liquidated damages. Clause (9) of the agreement contemplates four months' time for performance of the contract. Only in the written statement, defendants have taken a contention that the contract is against law. Under Section 54 of the Transfer of Property Act, the readiness and willingness on the part of the plaintiff could be canvassed only after

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obtaining the income tax clearance under Section 230A of the Income Tax Act. Until then, defendants cannot ask the plaintiff to show his ready and willingness to perform his part contract.

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12.2. On 23.07.1990, plaintiff called upon the defendants to execute the documents for obtaining clearance. They did not come forward to perform their part of contract. As on 29.04.1993, the agreement is alive and the plaintiff was always ready and wiling to perform his part of contract.

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12.3. Suppressing material facts, third party has filed I.A.No.11 in O.S.No.26186/2007 for clubbing of both suits and it came to be dismissed. The said order has been confirmed in W.P.No.24132/2014 (GM-CPC). The Trial Court has decreed the suit. Consequently, the suit filed by the third party in O.S.No.26186/2007 has to fail. The third party is not a party in the instant suit. It has

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no locus standi to question the impugned judgment.

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The decree has been passed on merits after fullfledged trial and sought for dismissal of the suit.

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In reply to the said argument, Shri D.L.N.Rao, has contended that the suit in O.S.No.26186/2007 and the instant suits were directed to be tried together and therefore, common judgment was required to be passed. Suppressing these facts, plaintiff, to deprive the right of the third party proceeded with the instant suit.

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Sri.S.K.V.Chalapathy has submitted that

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the defendants have no objection if the matter is remanded for disposal of both suits by a common judgment.

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We have given our anxious consideration to the arguments addressed on behalf of both parties and perused the records.

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The points that arise for our consideration

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are:

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(i) Whether the judgment rendered by the Trial Court in the instant suit was in compliance of the order passed by this Court in W.P.No.24132/2014 (GM-CPC)?

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(ii) Whether the impugned judgment calls for our interference?

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Reg. Point No.(i):

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The dispute is between two agreement holders for purchase of the suit schedule property from the defendants. Admittedly, plaintiff is the holder of first agreement and the third party is the holder of subsequent agreement. The recitals of the agreement between third party and the defendants contemplates an obligation on the part of the defendants to execute the sale deed based on the outcome of the instant suit.

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Plaintiff has filed the instant suit for specific performance against the defendants. Subsequently, the third party also filed the suit in O.S.No.26186/2007 against the defendants for specific performance of their contract. Both the suits were pending in different Court Halls at City Civil Court.

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The third party has filed I.A.No.11 in the instant suit for clubbing of both the suits and I.A.No.12 to implead himself as one of the defendants in the instant suit. Both the applications were dismissed. The third party preferred writ petition before this Court in W.P.No.24132/2014. In the writ petition, both plaintiff and the defendants are parties represented by their respective counsels. This Court after hearing both parties disposed of the writ petition vide order dated 14.07.2014, which is extracted herebelow:

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"Heard learned counsel for the parties.

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2. By this writ petition, the petitioner seeks to challenge the order dt. 5/3/2014 passed on I.A.No.12 in O.S.No.3352/93, whereby petitioner’s prayer for impleading him as defendant in O.S.No.3352/93 has been rejected. It appears that the petitioner has also filed O.S.No.26186/07 and that is pending before the City Civil Judge, Mayo Hall, CCH-29, Bangalore. O.S.No.3352/93 is pending before City Civil Judge, CCH-8, Bangalore. Both the suits are for specific performance of agreements, purportedly executed by defendants in the suits, and they are in respect of same property. In the first suit (O.S.No.3352/93), this court is informed that cross-examination of defendants’ witnesses is to commence, while in the second suit (O.S.No.26186/07), plaintiff’s cross-examination is in progress. Keeping that in view and considering that both the suits are for specific performance of agreements in respect of the very same property and against the same owners, certain suggestions were made during the course of hearing of this writ petition to learned counsel appearing for the parties and they have agreed for the following order:

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O.S.No.26186/07 is transferred to and directed to be tried by City Civil Judge, CCH-8, together with O.S.No.3352/93. It is made clear that though O.S.No.26186/07 is directed to be heard by City Civil judge, CCH-8, the suits are not clubbed, and the learned Judge shall proceed to

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hear the suits either simultaneously, but separately, or one after another, as he thinks fit and proper. It is further made clear that if the learned Judge finds it proper and if possible, he may dispose of both the suits by common judgment.

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With these observations, the petition is disposed of.

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All contentions of the parties on merits of the case are kept open."

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This Court has observed that the instant suit filed by the plaintiff and also the suit filed by the third party in O.S.No.26186/2007 are pending before different Court Halls of City Civil Court i.e., CCH-29 (Mayohall Unit) and CCH-8 (City Civil Court Unit) and parties have agreed for transfer of O.S.No.26186/2007 to be transferred to CCH-8 and directed to be tried together with the instant suit.

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While directing so, this Court has made it clear that both suits are not to be clubbed, the learned Judge shall proceed to hear the suits either

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simultaneously but separately or one after another, as he thinks fit and proper. It is further made it clear that if the learned Trial Judge finds it proper and if possible, he may dispose of both the suits by common judgment.

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From the above, it is clear that in the writ petition, learned counsel appearing for both plaintiff and the defendants including the third party have agreed for transfer of both suits and in compliance of the order, both suits were transferred to CCH-8. After transfer, the learned Trial Court has lost sight of the above directions issued by this court.

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We have carefully perused the impugned judgment. We notice that there is no reference to the direction issued by this Court in the writ proceedings. Both parties have brought directions of this Court to the notice of the learned Trial Judge.

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We gather from the order of this Court in the writ proceedings that since the relief sought for in both the suits is specific performance in respect of the same property against the same defendants, with consensus of both parties, a direction was issued to the learned Trial Judge to dispose of both the suits together preferably by common judgment. Unfortunately, same has not been followed, which has driven the third party as well as the defendants to file these appeals.

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Insofar as granting or not granting the relief of specific performance, there are several contentious points raised by both parties which require consideration by a same learned Judge and require to render common judgment by giving opportunity to parties to both suits.

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Shri D.L.N.Rao, learned Senior Counsel is right in his submission that the Trial Court has to

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dispose of both suits in the light of the decision of this Court in the writ proceedings, for which Shri S.K.V.Chalapathy, learned Senior Counsel has no objection. The impugned judgment is against the letter and spirit of the order of this Court and it cannot be sustained.

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Both appeals merit consideration. In the result, the following:

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ORDER

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(i) Both the appeals are allowed;

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(ii) The impugned judgment and decree is set aside;

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(iii) The matter is remitted back to the Trial Court (CCH-8) for disposal along with O.S.No.26186/2007;

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(iv) The Trial Court is directed to dispose of both the suits in the light of the directions issued by this Court in W.P.No.24132/2014 with letter and spirit;

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(v) Without further notice, parties shall appear before the Court on

11.03.2024 .

Sd/CHIEF JUSTICE

Sd/JUDGE

KNM

M/S. Fantasy Builders and Engineers Pvt. Ltd., v. Sri. K. L. Srinivasa Murthy

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M/S. Fantasy Builders and Engineers Pvt. Ltd., v. Sri. K. L. Srinivasa Murthy

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