Dismissed

S.Pushpaleela , Pushpa v. S.Bhaskar

Telangana HC29 Mar 2022SA/843/2010

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the defendants challenged the appellate court's order setting aside the trial court's rejection of a plaint filed for specific performance. The High Court held that the plaint disclosed a cause of action and that the suit was not barred by limitation, dismissing the appeal and upholding the restoration of the suit for trial.

What did the court decide?

The Second Appeal was dismissed with costs, and pending miscellaneous petitions were set aside.

S.Pushpaleela , Pushpa Vs S.Bhaskar — Specific Performance | Telangana HC (2022)

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HIGH COURT^{FOR THE STATE OF TELANGANA} AT HYDERABAD

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TUESDAY,^{THE TWENTY NINTH DAY OF IUARCH} TWO THOUSAND^{ANDTWENTY TWO}

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PRESENT

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THE HONOURABLE^{SMT JUSTICEP.SREESUDHA}

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SECON^{D APPEALNO:843 oF 2010}

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Appeal under^{Section100 of CPC against the Judgment and decree made in} AS No.57^{of 2007 dated 18/03/2010on the file of the Court of the lV Additional} District and^{Sessions Judge, (Fast Track Court)' Warangalpreferredagainst the} decreeinlANo.S44l2005inoSNo.20of2005dated1}tl2l2oo6onthefileofthe Court of the^{ll Additional Senior Civil Judge' Warangal'}

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Between:

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S.Pushpaleela @^{Pushpa, W/o Krishna HousewifeH'No' 20-'12-85Fort} ' Warandal (EAST) Waranqal

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2 S.Krish-na,^{S/o. Late rt'iifi]Vuru' BusinessH No' 20-12-85 FortWarangal} 3. (EAST) WarangalHS;iilr'i;;"'6t.^{Venkataiah BusinessH No 16-4-1353 Shivanagar'}

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ryftffi,L::I, S/o not known^Busines' "" :.ti#Efl.TL"f3ifltg6ftBni;rq, DEFENDANTS^{NO.g,8,'IO & 11}

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AND

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S.Bhaskar,^{Sio. LateMuthYalau}

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z. S.Srinivas,^{S/o'Late Muthvalau}

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A. 5.il;;;Wro.^{Lit" Ramaihander Rao Household} ;. ;.i{;;k;;,, s7o. r-rt"^{nu'achanderRao Household} s. 5.nrGsr,, S/o.^{Late Ramachander Rao} G. 5.k;iv;"4,^{D/o. Late Ramachander Rao} i. ' s.ivrii fAii ; ;;H; iinr, ri^{D/o. Late Ramchander Rao} r.rbl 2b-- r ): ii ; :."+E;ffi ge t=*?IfHE LlXft tr, r ro,,u', r *

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For the Appellants^{: SRI P'NARAYANA' Advocate}

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For the Respondents^{: SRIY'SRINIVASA MURTHY'Advocate}

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The Court delivered^{the following:JUDGTMENT}

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HON'BLE SMT. JUSTICE P,SREE SUDHA

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SECOND APPEAL No.843 of2O1O

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JUDGMENT

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This appeal is directed against the judgment and decree dated 18.03.2010 passed by thc learned IV Additional District & Sessions Judge (l.TC), Warangal, in A.S.No.57 ot 2OO7 allowing the appeal and setting aside the orders dated 18.12.2006 passed in i.A.No.544 of 2005 in O.S.No.20 of 2005 on the h1e of the learned II Additional Senior Civil Judge, Warangal.

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O.S.No.2O of 2005 was filed by the piaintilfs seeking specific perlormance directing Defendants Nos.1 to 7 to execute and register the sale deed in favour of Plaintiff Nos. I to 7 and Defendant No.8 and to deliver lawful possession of the property.

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In the above said suit Defendant No.9 filed I.A.No.544 of 2005 under Order 7 Rule 11 CPC to reject the plaint and the said IA was dismissed by the trial Court, and on an appeal, the appellate Courl set aside the order of the trial Court and directed to restore the suit on its file in its original number and to^proceed with the trial according to law. Aggrieved by the said order, De fendant Nos.9 to 1l in the suit^preferred this^secondappeal with thc following substantial^questions ol law.

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\fo'hether^{the trial court shall be passcdorder under}

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a) ci.i.,:'vi,^{n"r" r r - (a)(d) after conducting trial or not?} \i/hether the^{appellate court passedthe order contrary}

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b) ;;,^',h;-;.;".^{tit n'-'t' 1i (ai(d) as^plaintirrs liled the} that the t"'i'iiu"^{or agreement of sale}

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;i"il;;;;s is time barred^{as per section 54 of l'imitationAct or} rLO l?

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c) \Vhether ;;;;;; li"'l3.io".i',L"-Ti"r . the io*".^{trial appellate court rightly contrary court rejected.the remanded to the the} ,plain[^{reportedmatteron} :"a**."" *ported^in^{2003 (1) SCC 557 and in AIR} 12005 AP^{274 or nott}

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The^{plaintiffs in the suit submittedthat defendantsNos' 1 to} 7 are the^{o\sners of the land in Sy'No'615/A measuring Ac'12'26} guntas situated^{at East Fort Shivar of WarangalFort popularly} known^{as Kazikuntaand also for the lands in Sy'No 639/A'} known as^{Ekabar-rdaWet}

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640l A,^64it l^{A, 644, 642118- and 643} and their^{elder brother-}

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lands and Plaintiff^{Nos' 1and 2} are the^{agreement holders}

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Ramachan<ler^{Rao and defendantNo'8} for^{purcha:;eof the abovepropertiesand accordingly they entered} into an^{agreementofsale ongO 'O4 'lgg2Subsequently'} Ramachander^{Rao died and his wife and children are brought on} record as^{plaintiff's 4 to 7 'The plaintiffs furthcr states that an} agreement^{was entered for a totai consideration of Rs l '35'000/-} and out^{c,f which they paid an amount of Rs 1'10'000/- on the} date of^{agreement and it was acknowiedged by the vendorsand it}

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was agreed between the parties that within six months the vendors have to obtain necessary papers for execution of the deed of conveyance of sale, failing which they should handover possession. The plaintiffs paid the balance sale consideration of Rs.25,000/- and possession was delivered to them and that they have also sold away the properties in Sy.Nos.639 I A, 640 I A, 6421A, 644, 64218 and 643 to third parties with the consent of the vendors.

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Now the present dispute is only with regard to the land in Sy.No.615/A measuring Ac.L2.l6 gnts. The^plaintiffs would state that a copy of the agreement of sale is available with them^and the original is with the eighth defendant and that they are^protected under Section 53 of Transfer of Property Act, 1882 and their possession is permissive. The plaintiffs would also submit that they intend to get the sale deeds executed in individual names and accordingly approached the defendants for execution of the sale deeds but they postponed the execution on one or other^pretext and finally refused to execute the same on 10.01.2005 and as such they flled the suit for specific^performance. They would^also state that the defendants are intending to sell the^property to the outsiders ie., defendant Nos.9 and 11 ignoring their^physical possession. Defendant No.9 filed the present I.A. for rejection of

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the plaint ancl the lrial Court while allowing the application observed that the original agreement of sale is not available with the plaintifls and as such it is not in existence and the Xerox copy of the same is not admissible in evidence and that when the document iLsell is not present, there is no cause of action for the plaintiffs. IVloreover as per Article 54 of the Limitation Act, 1963, the period of limitation is three years. Even as per the agreement it is to be executed within a period of six months from the date of agreement ie., on or before 30.04.1992 but they kept quiet for nearly 13 years and contended that their request was refused on I 0.O 1.2OO5. Tl'rey have not given any legal notice for specific performance of an agreement of sale and as such there cannot be part of thr: 66ny6rrr-rce of the property. The date of denial is unbelievable and is not supported by any documentary evidence and that ttre suit is barred by limitation. After referring the case law cited thercin, the trial Court held that there is no written request made by the plaintiffs for extension of time and that the suit is barred by limitation and hnally held that the cause of action sho,vn by the plaintiffs is fictitious and accordingly the application is allowed by rejecting the plaint.

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The respondents in the I.A. preferred an appeal by contending that the law of limitation is a mixed question of law

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and fact and it is to be proved by adducing evidence and further contended that defendant Nos. I to 7 are making attempts to sell the property to defendant Nos.9 to 11, which is the cause ol action for the plaintiffs to file the suit.

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7 . The appellate Court held that the findings of the trial Court that there is no cause of action for the plaintiffs cannot be accepted and so also law of limitation is a mixed question of law and fact and it can be decided alter adducing evidence by both the parties and issuing ol the legal notice prior to the filing of the specific performance suit is not a condition^precedent and the condition mentioned in the agreement of sale is only to obtain necessary documents within six months and no time was fixed to execute a regular sale deed. The appellate Court further observed that even.as per Article 54 of the Limitation Act the^{plaintiffsare} at liberty to file.the suit lrom the date of knowledge of^performance is denied and accordingly set aside the order of the trial^Court passed in I.A.No.544 of 2005 and directed the trial Court to restore the suit and proceed with the trial. Aggrieved by the said order the defendant Nos.B, 9, 10 and 11^preferred this appeal.

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As per Order 7 Rule 11 CPC the plaintiff can^{be rejected in} the lollowing circumstance^s.

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a) Where it does not^{disclose a cause ol action}

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b) WLere the relief claimed^{is undervalued, and the plaintiff,} on being requested by the court^{to correctthe valuation} within a time to be fixed by the court,^{fails to do so;}

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c) WLLcre the rclief claimcd^{is properlyvalued but the plaint} is written upon paper insufficiently stamped, and^thc plaintilf on being required by the court to supply^the recluisite stamp^paper within a time to^{be fixed by the} court, fails to do so;

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d) Wherc the suit appears from the statement in^{the plaintifl} to be barred by any law;

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e) Where it is not filed in duplicate;

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f) Where the plaintiff fails to comply^{with the provisions of} Rr le 9;

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In thr: present appeal it is for this^{Court to decide whether} the plaintifls disclosed the cause of^{action and whether the suit is} filed withir the period of limitation or it^is barred^{by law of} limitation. Whether the plaint discloses cause of^{action or not is} essentially a question of fact. Learned^{counsel for the plaintiffs} would contend that even the law of limitation^is also^{a mixed} question of lau, and fact and thus, the rejection of the^plaint is to be decided by considering the entire contents of the^plaintalone and the other issues can be decided only after^{considering the} evidence on record.

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The olaintiffs herein filed the suit basing on the agreement of sale datr:d 30.O4.1992 for a sale consideration of Rs.1,35,000/-

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and the entire amount was paid and possession was also handed over to them. Perusal of the clause in the agreement shows that within six months the vendors have to obtain the necessary documents and then they should execute the sale deed in favour of the plaintiffs. If they failed to procure the said documents, they should handover thc possession. As per the receipt filed herein the balance amount ol Rs.25,O00/ - was also paid and possession was handed over the plaintiffs and they further state that they will not interfere with the possession of the plaintiffs.

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I 1. The plaintiffs stated that in pursuance of the agreement of sale, they have disposed of the all the properties in favour of third parties, except the suit schedule property. Though they stated that their request for execution of conveyance deed was relused by the defendant Nos. I to 7 on 7O.O1.2005, they have not stated when they requested the defendants for registration of the sale deed and why they kept quite all these years without insisting for registration of the sale deed was not explained. As per the terms of the contract, sale deed is to be executed within six months on or before 3O. 10.1992. Even as per the provisions of law, they should file suit seeking specific performance within three years from the date of agreement of sale, but they failed to do so. The right to sue accrued to them when the registration of the sale deed was not

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executed in^l-heir favour within^{six monthsas per the terms of the} agreement, they have neither^{issued any notice nor Iiled any suit} within the p:riod of^{limitation.They kept quiet lor nearly thirteen} years and r-row statcd that lhe suit filed by^them is^within limitation as the registration of^{thc sale deed u'as relusedby} defendant Nos. 1 to⁷ on^{10.01.2005.The plaintiffsfurther stated} that they ar,3 not having^{the original agreement of sale with them} and it is available with the^{defendant No.B and he alongwith his} wife-defende.nt No.9 colluded with the^{defendantNos. 1 to 7 and} intended to sell the^propertyto defendant^{Nos. 10 and 1i}

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In SWAMY ATMANANDA^{V/s. sRIRAMAKRISHNA}

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TAPOVANAM^1, the Hon'ble Apex Court^{held that} 'A^causeof action, thus, means euery fact,^{tuhich, if trauersed, it tttould be} necessary for the plaintiff to^{proue in orderto support his ight to a} judgment oJ the cour7. In other uords, it is a bundle of facts, ttthich taken uith the lau applicable to^{themgiuesthe plaintiff a right to} relief again:;t tle defendant. It must^{include some act done bg the} defendants since in the absence of^{such an act, no cause of action} can possiblll accnte. "

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As pe:r Order 7 Rule^{14 (1) the plaintiffis entitledto file a} copy along with the^{plaint and as such the reasoning given by the} '(2005)^{lo soc 5I}

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trial Court regarding non-filing of the original agreement of sale is not sustainable. The period of limitation prescribed under Articles 58 and 59 of the Limitation Act is three^years and commences from the date of when the right to sue first accrues.^The underlying object ol'Order 7 Rute 1 1 is that if no cause of action^is disclosed or the suit is barred by limitation,^{the Court would not} permit the plaintifl to unnecessarily protract the^proceedings in the suit. [n such a casc it would be necessary^{to put an end to the} sham litigation, so that further^judicial time is not^{wasted. For} deciding a plaint {iled under Order 7 Rule^{1 1} CPC^{few linesor} passage from the plaint should not be read in isolation and the pieadings ought to be read as whole to ascertain its true import. The power under Order 7 Rule 1l CPC can be exercised^{by the} Court at any stage of the suit. The relevant lacts^{whichneedto be} looked into for deciding the application are the averments of^the plaint only. If on an entire and meaningful reading of the^plaint, it is found that the suit is manifestly vexatious and^{meritless in the} sense of not disclosing any right to sue, the^{Court shouldexercise} power under Order 7 Rule I I CPC. If clever drafting^{has created} the illusion of a cause of action, it^{has to be nippedin the bud.}

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In M.SESHAGIRI RAO V/S. M.RUKKAMMA2 this Court held that m':re denial or refusal on the part of exccutants of sale agreement rloes not come to aid of plaintiff to save period of limitation. When once limitation runs, it continues to run and exclusion ol period of limitation can only bc under provisions of the Act but :-rot otherwise.

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i5. The facts ol the case on hand are so peculiar. Basing on the agreement of sale only, the other properties were disposed of by the plaintiffs with the consent of the vendors. When the plaintiffs intend to execute sale deeds in their favour independently in respect of the propert5z in question, defendant Nos. I to 7 refused to execute t,he same and as such they hled the suit for specific performancc. It is pertinent to note that I.A.No.544 ol 2005 is hled for rejectior:. of plaint by Defendant No.9 (wife ol Defendant No.8) alone, but rrot by actual owners of the subject land i.e. Defendant Nos. 1 to 7.

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L6. Learned counsel for the plaintiffs would argue that the Court has to look into the averments alone for deciding the application filed under Order 7 Rule 11 CPC. As the cause of action is a question of lact and the issue ol limitation is a mixed

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'^{zoo61+1ALt, (Noc8 t)}

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question ol fact and law, both the issues can be decided in the main suit after adducing evidence on both the parties and thus rejection of the plaint at rhe threshold is bad in iaw.

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In thc plaint the plaintifls would contend that Defendant Nos. I to 7 are the owners of the land in Sy.No.615 admeasuring 4c.12.26 guntas apart from that they are also owners of the lands in Sy.Nos.63glA, 640/A, 642/A, 644, 642/8 and 643. They entered into an agreement of sale on 30.04.1992 with defendant Nos. 1 to 7 and it was agreed between the parties that within six months from the date of agreement the vendors have to obtain necessary papers for execution ol the deed of conveyance by sale, failing which the vendors have to deliver possession to the purchasers. The plaintiffs would further state that the vendors had also gave express consent for selling the lands in Sy.Nos.639/A, 640lA, 6421A, 644, 642/B and 643 to the third parties and thus, the suit is filed only in respect of land in Sy.No.615/A admeasuring Ac.12.16 guntas. The agreement of sale was executed in favour of plaintift Nos. 1 and 2 and their elder brother Ramachandra Rao and defendant No.g. As such, the original agreement of sare is availabre with defendant No.B and therefore, the plaintilfs filed only Xerox copy of the original agreement of sale along with the plaint. Defendant No.g is the wife

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of defendant No.S and she turned hostile to the other plaintiffs. Since the original agreement of sale is with defendant No.S, he along with other defendants are trying to alienate the property in favour of defendant Nos. 10 and 11 to cause loss to the plaintiffs. The plaintiff's approached defendant Nos. 1 to 7 for exccution of the sale deed, but ultimately they denied execution on 10.01.2005 and they also ,leclared that they intend to sell tht: propcrty to defendant I'los.9 to 1i ignoring the physical possession already handed over to the plaintiffs. ln the case on hand, plaintiffs paid the entire saie consideration and possession was delivered to them way back and the plaintiffs disposed of certain propcrties basing on agreement of sale with the valid consent of vendors, and thus, this Court finds that no error in the order of the appellate Court in setting aside the order of the trial Court lor rejection of the plaint and remanding the matter by restoring the suit to its original number with a direction to proceed with the trial according to law, and as such, it needs no interference.

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Admittedly, the litigation started about 30 years back and still at the stage of filing of the suit. Therefore, to meet the ends of justice, this Court is of the opinion that both the parties are directed to cooperate u,ith the trial Court for its disposal and the trial Court is also directed to decide th<,' matter as expeditiously as

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possible , prcferably^{within a period of six months from the date of} receipt of a^{coPYol this order}

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