Partly allowed

Mr. P.S. Dinesh v. Mysore Urban Development Authority

Karnataka HC22 Oct 2024RSA/1193/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, setting aside the first appellate court's dismissal of the suit for limitation and lack of privity. It modified the decree to order refund of site payment to the appellant society instead of directing the authority to allot a site, citing failure to prove payment to the authority and limitation issues.

What did the court decide?

Impugned judgment set aside; trial court judgment modified to grant refund of site payment value with 9% p.a. interest to the plaintiff.

Mr. P.S. Dinesh Vs Mysore Urban Development Authority — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:42438 RSA No. 1193 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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REGULAR SECOND APPEAL NO. 1193 OF 2015 (SP)

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BETWEEN:

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MR. P.S. DINESH,

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AGED ABOUT 61 YEARS,

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SINCE DECEASED BY LRs

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1(a) PADMA DINESH

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AGED ABOUT 60 YEARS, W/O LATE MR. P.S. DINESH,

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R/A A301, NITESH CAESARS PALACE,

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KANAKAPURA MAIN ROAD,

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RAGHUVANAHALLI, BENGALURU-560 002.

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MRS. DEEPIKA DINESH, AMENDED AS PER ORDER

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1(b) AGED ABOUT 37 YEARS, DATED 20.02.2020 D/O LATE MR. P.S.DINESH, W/O MR. AKSHAY RAGHU, R/A 425, REDGETOP BEND, CEDAR PARK, TEXAS - 78613.

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…APPELLANTS

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(BY SMT. NIDHISHREE B.V., ADVOCATE)

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AND:

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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MYSORE URBAN DEVELOPMENT AUTHORITY, JLB ROAD, K.G. KOPPAL, CHAMRAJAPURAM MOHALLA, CHAMRAJPURA, MYSURU -570 005, THROUGH ITS COMMISSIONER.

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NATIONAL INSTITTUTE OF ENGINEERING ALUMNI HOUSING CO-OPERATIVE SOCIETY LTD., NATIONAL ENGINEERING COLLEGE PREMISES, MANANDAVADI ROAD, SRIRAMPURA MYSURU-570 008.

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…RESPONDENTS

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(BY SRI G.B. SHARATH GOWDA, ADVOCATE FOR R1; V/O DTD 15.2.2021 SERVICE OF NOTICE IS H/S IN RESPECT OF R2)

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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THIS RSA IS FILED UNDER SEC.100 OF CPC.,1908 AGAINST THE JUDGMENT AND DECREE DATED 07.04.2015 PASSED IN RA NO.410/2009 (OLD RA NO.197/2005) ON THE FILE OF THE C/C OF VII ADDL.DISTRICT JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.10.2004 PASSED IN OS.NO.791/2002 ON THE FILE OF THE PRL.I CIVIL JUDGE (Jr.Dn.) MYSURU.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 07.04.2015 passed by VII Addl. District Judge, Mysuru, in R.A.no.410/2009, this appeal is filed.

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Smt.Nidhishree B.V., learned counsel for appellants submitted, appeal is by plaintiff in suit filed for specific performance against respondents no.1 and 2. It was submitted, facts stated in suit briefly were that plaintiff was a member of defendant no.2-Society and applied for allotment of site. As per prevailing norms, said society had sought bulk allotment of sites from defendant no.1 - Mysore Urban Development Authority for allotment to its members. It was stated, plaintiff, had paid full value of site measuring 40 ft. X 60 ft. in Vijayanagar Layout i.e. Rs.28,000/-. It was stated, about 80 members of defendant no.2 had paid amount. However, this Court had in meanwhile, held bulk allotment to Housing

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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societies as illegal. But, defendant no.1 had formulated Ashamandira Scheme on humanitarian grounds to allot sites in case of applicants who had remitted allotment price to it prior to date of order passed by this Court. Thereafter, defendant no.1 had allotted sites to 78 other members of defendant no.2, excluding plaintiff. Therefore, plaintiff submitted representation to defendant no.1. In view of no response, he got issued legal notice prior to filing of suit.

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In response to suit summons, defendants entered appearance and filed separate written statements. Defendant no.1 stated, after this Court declared bulk allotment as illegal, on moral and humanitarian grounds, defendant no.1 had formulated ' Ashamandira Scheme'. Same was applicable only to applicants who had paid entire sital value before date of orders passed by this Court. It was stated that plaintiff had earlier approached Consumer Forum, which rejected his complaint. Appeal filed before Karnataka State Consumer Disputes Redressal Commission, was also dismissed. Though with liberty to approach Civil Court, suit filed was barred by limitation.

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In separate written statement, defendant no.2,

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admitted plaintiff was its member and had paid full sital value

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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and about entitlement of relief by plaintiff. It conceded to suit

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prayer, but sought dismissal of suit against defendant no.2.

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Based on pleadings, trial Court framed following

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issues:

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1) Whether Plaintiff proves that he was allotted with site measuring 60 feet X 40 feet in III stage Vijayanagar, Mysore and he has paid full sital value in the year 1987 itself?

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2) Whether Plaintiff proves that he It was stated that entitled for a decree for specific performance in respect of site?

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3) Whether Plaintiff proves the suit is in time?

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4) What Order or Decree?

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Before commencement of evidence, trial Court found issue no.1 was not properly framed and ordered for its deletion. Thereafter, plaintiff examined himself as PW.1 and got marked Exs.P.1 to P.13. On account of failure to appear for cross-examination, evidence of DW.1 was eschewed, while defendant no.2 did not lead evidence.

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On consideration, trial Court answered issue no.2 partly in affirmative; issue no.3 in affirmative and issue no.4 by decreeing suit and directing defendant no.1 to allot a site

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5 - NC: 2024:KHC:42438 RSA No. 1193 of 2015

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measuring 60 ft. X 40 ft. in Vijayanagar Layout or in any other

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layout formed within limits of Mysuru City Corporation.

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Aggrieved, defendant no.1 preferred

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R.A.no.410/2009 on several grounds, but specific ground about suit being barred by limitation was not pleaded. Based on grounds urged, first appellate Court framed following points:

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1) Whether Trial Court is justified in partly decreeing the suit?

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2) Whether Judgment and Decree of Trial Court calls for interference?

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3) What order?

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After answering point no.1 in negative and point no.2 in affirmative, first appellate Court allowed appeal by setting-aside judgment and decree passed by trial Court and dismissed suit.

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It was submitted reversal of judgment and decree by first appellate Court was on two grounds: firstly, about failure to establish privity of contract between plaintiff defendant no.1 and secondly, on ground that suit was barred by limitation, both of which were contrary to facts and law applicable thereto. It was submitted, this appeal was admitted

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on 08.06.2016, to consider following substantial questions of

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law:

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1. Whether the lower appellate Court is justified in reversing judgment and decree of trial Court without considering the oral evidence and material documents produced by the appellant and admission made by the second defendant that amount was deposited towards full sital value and no arguments was adduced on behalf of the first respondent?

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2. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court, when the plaintiff has paid the entire sital value in the year 1997 itself?

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3. Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the case?

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It was firstly submitted, defendant no.1 having

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examined a witness and failure to offer for cross-examination and when defendant no.2 specifically stated that entire sital value paid by plaintiff was remitted to defendant no.1, failure to lead evidence on said aspect would amount to withholding of best evidence available, therefore justified in drawing adverse inference.

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Referring to decision of Hon'ble Supreme Court in

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Iswar Bhai C. Patel v. Harihar V. Behera and Ors. reported in 1999 (3) SCC 457 , it was submitted prior to filing of suit, plaintiff had admittedly approached Consumer Commission and

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after dismissal of complaint, State Commission, which in its order dated 10.06.2002 (Ex.P.2) specifically reserved liberty to plaintiff to avail benefit of Section 14 of Limitation Act. It was submitted, since suit was filed after dismissal of appeal by State Commission, plaintiff was entitled for benefit of Section 14 of Limitation Act, 1963. Therefore, first appellate Court was not justified in dismissing suit as barred by limitation.

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Learned counsel relied on decision of this Court in

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O. Leelavathi and others Vs. M.Neelakanta Naidu and

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others, reported in (2006) 6 Kant LJ 617 , to contend, period of limitation under Article 59 of Limitation Act begin to run only from date of knowledge of plaintiff. Referring to suggestions made to PW-1 during cross-examination about remission of entire sital value by plaintiff to defendant no.2 and about making over of same to defendant no.1, it was submitted, plaintiff did not have knowledge of refusal to allot site until receipt of endorsement dated 03.05.1997. It was submitted, as plaintiff had filed Consumer Complaint in year 1999, and ultimately suit was filed on 24.08.2002, i.e. immediately after passing of order by State Commission on 10.06.2002, suit would be within time.

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It was further submitted, while passing judgment and decree, trial Court had taken note of receipts at Exs.P.9 to 11 to give a clear finding about remission of entire sital value by plaintiff. In light of above facts, though trial Court came to conclusion that plaintiff had failed to establish existence of contract or agreement between plaintiff and defendant no.1 which could be specifically enforced, by taking note of allotment made by defendant no.1 to other members of defendant no.2 under Ashamandira Scheme , it found fit to issue direction to defendant no.1 to allot site measuring 40 ft X 60 ft. in Vijayanagar or any other layout, to plaintiff.

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It was submitted, since finding of trial Court was with reference to material on record, first appellate Court was not justified in reversing same on above mentioned grounds. Learned counsel therefore, sought for answering substantial questions of law in favour of appellants and allow appeal.

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On other hand, Sri GB Sharath Gowda, learned counsel for respondent no.1 sought to oppose appeal. It was submitted, admittedly there was no privity of contract between plaintiff and defendant no.1. Evidence led by plaintiff, at best indicated receipt of allotment price by defendant no.2. It was

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9 - NC: 2024:KHC:42438 RSA No. 1193 of 2015

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submitted, since bulk allotment of sites to Housing Cooperative Societies was stopped in view of judgment passed by this Court, and Ashamandira Scheme was formulated on humanitarian grounds, to allot sites only to such applicants who had remitted entire sital value to it, prior to date of passing of order by this Court. It was submitted, plaintiff had failed to establish payment of sital value to defendant no.1. Therefore, first appellate Court had rightly interfered with judgment and decree passed by trial Court and set aside same.

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It was submitted, even as per plaintiff, sital value was paid in year 1987. But complaint before Consumer Forum was filed only in year 1997, leading to its rejection and dismissal of appeal by State Commission on 10.06.2002, with observation that plaintiff could take benefit of Section 14 of Limitation Act, but without condoning delay. Therefore, there was no bar against examination of limitation by first appellate Court. It was submitted, as impugned judgment and decree was passed after re-appreciation of entire material available, there would be no scope for interference in second appeal and sought for dismissal of appeal.

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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Heard learned counsel, perused impugned

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judgment and decree and record.

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It is seen this appeal was admitted to consider three substantial questions of law, sum and substance of same would be whether reversal of trial Court decree by first appellate Court was contrary to oral and documentary material on record?

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From plaint, it is seen, plaintiff has stated that as a member of defendant no.2, he paid Rs.1,000/- on 29.07.1986 , Rs.6,700/on 29.09.1986, Rs.5,000/23.09.1986 and Rs.23,080/- on 16.12.1987, to defendant no.2. Plaintiff has also asserted that prior to order passed by this Court for stopping bulk allotment of sites to Housing Co-operative Societies, about 80 members of defendant no.2, including plaintiff had paid entire sital value, except certain service charges. It is also pleaded that defendant no.1 had come up with Ashamandira scheme to offer sites to members who had paid entire sital value and that filing of application under Scheme was only a formality. It is pleaded that defendant no.1 had accepted entire sital value. It is stated, when plaintiff did not receive any communication, he got issued legal notice on

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24.03.1997 and received endorsement dated 03.05.1997 intimating rejection of claim of plaintiff.

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It is also seen, plaintiff specifically stated, cause of action to file suit arose in year 1987 when plaintiff had paid full sital value and in year 1997 after receipt of endorsement. It is also seen, plaintiff had pleaded about filing of Complaint no.CD/123/97 before Consumer Forum, Mysore and on its rejection, about filing of Appeal no.794/1999 State Commission, which was disposed of on 10.06.2002, reserving liberty to approach Civil Court.

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In its written statement, defendant no.2 admitted about issuance of Ashamandir scheme , but specifically stating that it was only in favour of those who had paid entire sital value before passing of judgment by this Court to stop allotment.

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Perusal of written statement of defendant no.2 reveals that clear admission about plaintiff being its member, receipt of full sital value for site measuring 60ft. X 40 ft. from plaintiff and allotment of sites to 78 members by defendant no.1.

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It is also seen, judgment of trial Court is based on conclusion that plaintiff had paid entire sital value of Rs.28,000/- to defendant no.2 by referring to pleadings and deposition of PW1 and contents of Exs.P.9 to 11. From pleading in written statement of defendant no.1, it concludes that there was admission about plaintiff being permanent resident of Mysuru and about allotment of sites to applicants who had paid sital value prior to passing of order by this Court prohibiting bulk allotment of sites to Housing Co-operative Societies. Though it rightly concluded that there was no contract or agreement between plaintiff and defendant no.1, which could be specifically enforced, it held direction could be issued to defendant no.1 to allot site to plaintiff under Ashamandir Scheme as in case of other applicants.

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It answered issue regarding limitation by referring to decision of Hon'ble Supreme Court reported in AIR 1995 SC 1428 to conclude, suit filed immediately after disposal of Appeal by State Commission, was not barred by time.

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In appeal, one of reasons for first appellate Court to allow appeal was suit was barred by limitation. But, sum and substance of grounds urged by defendant no.1 in Appeal was

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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that there was no privity of contract between plaintiff and defendant no.1 and there was no specific proof about payment of sital value by plaintiff to defendant no.1. There is no specific ground urged about suit being barred by limitation nor a specific point framed insofar as limitation. In fact, points framed are about validity of judgment and decree of trial Court.

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However, first appellate Court has passed impugned judgment and decree after re-appreciation of entire material on record. Referring to Exs.P.9 to 11, it observed that they would indicate payment of sital value by plaintiff to defendant no.2, but not defendant no.1. Referring to suggestions made in cross-examination of PW1 by defendant no.2 (which was basis for trial Court to hold plaintiff had established payment of sital value to defendant no.1), it held, same would not be proof of payment of amount by plaintiff to defendant no.1. It further observed there was no material produced by defendant no.2 to substantiate said suggestion to conclude that none of Exs.P1 to 13 produced by plaintiff would establish amount paid by plaintiff was deposited with defendant no.1 or about defendant no.1 agreeing to allot site measuring 40 ft. X 60 ft. to plaintiff and breach of said contract or assurance.

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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Insofar as official of defendant no.1 filing affidavit in lieu of examination in chief, but failing to enter witness box for cross-examination, first appellate Court relied on settled legal principle that plaintiff had to succeed or fail on his own strength and cannot depend entirely on weakness of defendants.

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Insofar as limitation, it noted disappointment about non-allotment of site expressed in Ex.P7 - letter by plaintiff to defendant no.1, to conclude that plaintiff had knowledge that he was not allotted site and therefore, period of limitation would begin to run from date of Ex.P7 i.e. 17.06.1988. It therefore, holds suit was barred by limitation even after exclusion of time spent before Consumer fora. It observes, when plaintiff did not offer explanation about keeping quiet from 1988 till 1996, nor placing material to prove payment of sital value by plaintiff to defendant no.1 to conclude that conclusion of trial Court were contrary to material on record and as such perverse. On such conclusion, it proceeded to reverse judgment and decree passed by trial Court. It is seen that first appellate Court passed impugned judgment and decree after referring to entire material on record and by reappreciating same.

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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The question for consideration would be whether same calls for interference in second appeal on grounds urged. Insofar as contention that conduct of defendant no.1 failing to enter witness box and make available material available with it, to contend that it was fit case for drawing adverse inference as held in Iswar Bhai Patel 's case (supra), it is seen facts of said case were that trial Court had decreed suit for recovery of money against defendant no.2. But in appeal, first appellate Court modified decree by holding both defendants no.1 and 2 are liable under decree. In appeal by defendant no.1, Hon'ble Supreme Court noted that appellant-defendant no.1 had abstained from entering witness box and not made any submission in support of pleadings set out in his written statement. As there was material available on record to indicate that at instance of appellant, defendant no.2 had issued cheque which was encashed, it held adverse inference has to be drawn against appellant about his pleading in written statement as being incorrect.

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In instant case, defendant no.1 did not specifically plead that it had not received sital value from plaintiff as same was not even pleaded by plaintiff himself. On other hand, it was

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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defendant no.2, who admitted receipt of entire sital value from plaintiff and claimed to have made it over same to defendant no.1. It also made suggestions to this effect to PW-1. However, it did not place any material to corroborate same.

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Under such circumstances, when both plaintiff and defendant no.2 failed to establish even prima-facie that sital value was received by defendant no.1, drawing of adverse inference would not be justified. Under above circumstances, ratio in Iswara Bhai Patel 's case would not lend any assistance to appellant.

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O. Leelavathi 's case (supra), it is seen this Court clarified law that period of limitation under Article 59 of Limitation Act begins to run from date of knowledge. First appellate Court has specifically taken note of assertion by plaintiff in Ex.P.7 - letter addressed to defendant no.1 that plaintiff was aware about non-allotment as early as on 17.06.1988 or about rejection as noted in order passed by Consumer Forum and State Commission. Though suit is filed immediately after order passed reserving liberty to file suit, benefit under Section 14, would be available only insofar as time spent in prosecuting

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case before wrong forum. Indeed, in view of second part of Article 54, period of limitation would begin to run from date of knowledge about rejection, even if same was as per Ex.P.7 in case of plaintiff, it would have been incumbent upon plaintiff to have sought declaration about rejection being invalid or illegal to be entitled for relief. Failure to seek said prayer would be fatal, disentitling plaintiff from relief.

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Besides, finding by first appellate Court about failure to establish receipt of sital value by defendant no.1 would be a finding of fact based on appreciation of evidence on record. But, in present case, it is seen plaintiff has sought relief on ground of payment of entire sital value as per extant scheme, to defendant no.2, about which there is clear admission by defendant no.2. Though, plaintiff may not be entitled for any relief against defendant no.1, dismissal of suit in entirety would result in unjust enrichment of defendant no.2.

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Therefore, substantial question of law are answered partly in affirmative. Consequently following:

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ORDER

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Appeal is allowed in part, Judgment and Decree dated 07.04.2015 passed by VII Addl. District Judge, Mysuru, in

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NC: 2024:KHC:42438 RSA No. 1193 of 2015

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R.A.no.410/2009 is set aside; judgment and decree dated 12.10.2004 passed by Prl. I Civil Judge (Jr.Dn.) Mysuru, in O.S.no.791/2002 is modified holding that plaintiff is entitled for refund of amount paid by him to defendant no.2 within three months from date of this order with interest at 9% per annum from date of receipt.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg* List No.: 1 Sl No.: 59

Mr. P.S. Dinesh v. Mysore Urban Development Authority

Case brief

What is this about?

What did the court decide?

Mr. P.S. Dinesh v. Mysore Urban Development Authority

Case brief

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