INTHEHKHTCOURTOFKARNATAKAATBANGALO§E.
DATED THIS THE 29"' DAY OF NOVEMBER,_ ;201.{r)u'.'_.'__j " %
BEFORE
THE HON'BLE MR. JUSTICE é Y'
RFA No. 459/_2oo1A'
BETWEEN:
VENKATAGIRIYAPPA
S/O LATE YELLAPALLI _
REDDAPPA _ A
AGED ABOUT BQYEAERS A - :
R/AT BESTERE ROA1;D,_ _ 4_ "
YELA_HANKA-
BANGALORE NOIRTH TALUI"{7f ._ ¢ 1; ...APPELLANT
(By Sri YOGA BiAATavTA..s:TmHAA:,"sR_.cOUNsEL EOR
Sri S.S".GUTTAL; ~A.DV;)_
AND:
i'; " v,1§iAM"A1.,AMMA
sINGE"BEcEA_sED BY LRS
1(a) Suit sAB}'TiA
W'/0 YSRTNIVAS
AGED 'ABOUT 63 YEARS
---- A .AR/ATNO. 15694-1,
. L1G *"'"-'T MAIN ROAD, 2"" CROSS,
NAGARBA BLOCK, SRIRAMPURA
BANGALORE -- 560 021.
'K
2/
¥\.)
2. P.V.NIRMALKUMAR
AGED ABOUT 52 YEARS
3. P.V.MANJUNATI-I
AGED ABOUT 47 YEARS
R2 & R3 ARE SONS OF
LATE PSVENUGOPAL SWAMY
Rx AT No.1 18, 4"' MAIN ROAD,
CHAM ARAJPET,
BANGALORE -- 18.
4. P.V.UMAPATHI NAIDU
AGED ABOUT 45 YEARS
SINCE DECEASED BY
4(1)SmtESHWAR_}"._
W/O LATE ;i>.V;: IMARAI'HfNA1jjt§R A .
AGEOAABSOET 215: YEARS
OCC: I-I__OUS'LiW,}FE A
4(2)CHETA,N'A_ ._ . _ A
W/O LATE P.V.UMAPA.,T7HI NAIDU
AGED ABOUT 25' YEARS
._0CC:._HQUSE «
* . S BOTZHXARE RESIDING No.1 .17
' AT?' MAIN, A8"? CROSS,
. 'A.CHAM'A_RA§'PET, BANGALORE-18.
5. R SRINIVAS RAH;
S/O-. LA.fi'E -NfR.RA}U
AGED ABOUT 36 YEARS
A Ar:/O BHAGYASHREE DEVELOPERS
A 5S" No." 134/29, SHAKTI SR1" NEW
0"'
BEL ROAD, RMV 2"" STAGE,
BANGALORE A560 094. R_ESPONI§Ei\'F:T:Svv..
(By Sri.B.V.RA1\/IAMOORTHY, ADv., FOR R1_(A)
R--2~»3 SERVICE HELD SUFFICIENT I . _
R--4I & 2 ARE SERVED BY WAY OFFAFER _. ' I
PUBLICATION I '. I
SriT.S.AMAR KUMAR, ADV., FOfi'«M/§§_I;AW'§'§IRS, «. "
INC, ADvS.,FOR R5)
THISRFA IS FILED W8 96 R/W/6"w<IA:'R.VVI OF" AGAINST
THE ORDER & DECREE D"i';2A3_}03.20O1 PASSED IN
O.S.NO.75l2/92 ON THE FILE OF 'ifH.E"*--}_{Iv.I AD_DL.CITY CIVL
JUDGE, BANGALORE. . =
THIS RFA .COMIN:G FOR7IIEAR;ING THIS DAY,
THE COURT DELIVERED_'1"HE. FOLLOWING;
This appeal is di«recteLI the judgment and decree dated
23.03.2C§JI' in '751':;/I992 passed by 11"' Additional City
V" .I_Uiige,."'BAangaI.Ore, dismissing the Suit for decree of permanent
injiinci-i'On a'rId\'SvpeCific performance.
./
2. Appellant is the plaintiff and respondents are the
defendants before the Trial Court. in this judgment, for convenience,
the parties are referred to their status before the trial Courtw .i _._ if
3. 11 is the case of plaintiff thatdefendants'”e§§ecuited7an *
agreement of sale on 23.12.1988 as per to seil:l”~thiei1vi_:
plaint schedule property for a totalii_c’c-risideratiori of
Under Ex.P.1 the defendants havey__.ac’i:nowledged”the reeeipt of
advance amount of Rs.20,000f» “andide1V§–ve.,red’i.possession of schedule
property and also_”so_rne iporiiginaln doeuments in part
performance of the lagree1nen’t.yo17 .sa}e..’Further it is agreed that Within
a period of years th.e”en1i.re”—-s_ale transaction is to be completed.
V Subsequently the “plaintiff paid an additional advance amount of
1ie.11.0.i000{Li.en_l:10.11.1990 as per Ex.P.3. Thereafter on 10.06.1992
the_detfendanits.reeeived additional advance amount of Rs.20,000/–
and a§1’eed=to “e-ittend the period of agreement by another one year
i”Vfrorn+!:hat date. Despite repeated requests, demands and lawyer’s
.;.’ne°1vsee’ ‘en 10.09.1992 as per Ex.P.8(a), the defendants failed to
,…..
?\1
/”
perform their part of obligation and on the other hand triedltato
dispossess the plaintiff from the plaint schedule pr0pertyr;'”Tll
the plaintiff initially filed O.S. No. 7512/1992 againstMgfpwwglefendants ”
on 21.11.1992 for decree of permanent,’inju.nctijon–_ .0
defendants from interfering with 4_posse$s_ioii andyelnjeyrncntll of
plaint schedule property. In this “75_l2/ defendants
were placed ex–parte. Duriiilghhe suit lzlaefore the
Trial Court the plaintiff seeking
amendment of of prayer for
decree of agreement of sale dated
23.12.1980. fo__r– ainendrnent was allowed on
31.051.997.00 Trial an ex-parte decree on
V 17.06.lf)9’7.s..Aggrieve_dl lhy this ex–parte decree of Trial Court the
No. 590/ 1997 and the same came to be
Further this Court in M.F.A. No.
.1027/2000order dated 06.03.2000 set aside the ex-parte
if decree of the Trial Court and remanded the matter for
pfresh disposal in accordance with law.
p–..
i”\t
J”
4. After remand from this Court, the defendants filed written
statement inter alia contending that subsequent to the agreement of
sale dated 23.12.1988 there came to be another agreement v1/I
the parties on 10.06.1992 as per Ex.D.l renewingllthe H
agreement and enhancing the sale consid::’ration«fro–rn
to Rs.4,50,000/~«. On the date of second Allagreernent lid
plaintiff has paid additional advancelo«f:Rs.20,l)U0[{ thlevpsarne is
acknowledged by the defendants Thellidevfendants
contend that plaintiff, by agreement –
Ex.D.1_, has fi1.edl’i’the…snit and’-tth_erefore the same is liable to be
dismissed. The defendantssltttrfner’contend that the suit is barred by
limitation and the plainltilff was not ready and willing to perform his
part Qffllthe On these grounds the defendants opposed the
Trial Court on the basis of pleadings framed
the following issites for consideration.
A. ,1: Whether the plaintiff proves that the defendants agreed
to sell the suit property for a consideration of Rs.One
flu
iii.
iv.
vi.
lakh and an agreement of sale dated 23.12.1988 has
been executed?
Whether the plaintiff proves that he
advance sale consideration of the
defendants?
Whether the plaintiff: _proves3_th’at he
possession and enjoymelnttof’ the suit’proiperty?3E
Whether the pil4a’intiff.’?proves«._V_thvatv.he has been ever
ready and willing to perforrn contract?
‘Whe:thei’;:jp.tlie piaintiff pi’oves’xltha–t=’ he is entitled for
specific p.erforn2.ari’ee of the contract?
ll Whethertheltlplaintiif proves that he is entitled to the
l ‘ i_permaaentinjunction sought?
t vii.
:W_h”ether the defendants proves that the suit is barred
:”t’,y_’1irriitation?
vi ii.
“ix;
‘Whether the defendants prove that if the suit is decreed
V they will be put to more hardship?
What decree or order?
»-M.
/ “N
5. Before the Trial Court the plaintiff examined himself as
P.W.l and got marked Ex.P.l to Ex.P.27. The first defendant got
examined herseif as D.W.l and got marked Ex.D.1. The Trial_Cour_t_
on appreciation of the pleadings, oral and documentary’.evi.de–nce¥-___ _
held that the plaintiff has proved the execution of agreev-mientllof sale if
dated 23.12.1988 and payment of advance anioluntlllefii
Further the Trial Court held that tthe..,_plaintiffliwas 1liCili’:'[:6E1.dVyH and
willing to perform his part of 0bligatl:(5ii.,:§lI1£l» theiisuitfis barred by
limitation. Consequently thel._inip;I.gined~ judgment the Trial
Court dismj’sse’d. suiltiifiyf plaintiff. He’nce, this appeal.
6. Sri. C’floganarasinallap.-‘teamed Senior Counsel for the
” pl,ainti.fficon.tends, thatllth’e”‘question of limitation is a mixed question
and”factl,lThe’:.Trial Court allowed the amendment of plaint
T if permitting the ‘plaintiff to incorporate additional prayer for decree of
specific performance of agreement of sale and the same relates back
t”ei”the_ date of institution of the suit. As such, the suit filed by the
Vpiainltiff is within the period of limitation. The Trial Court, without
2–..
& Va–J
l 0
committed an error in not considering this oral evidence and
contents of written agreement — EX.P.l. Reliance is placed the
following decisions.
a. lshwardas Vs. The State of Madliya. pPre_desli1″‘and oVthe:r,s,7.,
AIR 1979 SC 55E
b. ML. Shankaranarayana’Rand/ps. Co1’poratio”n City
of Bangalore, 1973 (II)
7. Per contra, Sri. A_rnart~~.l{u’mar,”‘-«learn-ed counsel for
for respondent :’conten(1,__tl1at.’5 years later to the filing of the
suit the plaintiff fi1ed~..thei.applic:ation for amendment of the plaint. It
V was o41i’3l..05.lV99’Z application for amendment was allowed
comierting’ the for injunction into one for decree of specific
peffo’rrnance”ef__aga*eement of sale. Therefore the suit for the purpose
9 . of decree for specific performance was filed only on 31.05.1997. As
3.1_._05.l’997 the suit for specific performance is barred by
It is further contended that in the notice as per Ex.P.8(a)
J.
dated 10.09.1992 and also in the plaint before the Trial Court and
even after the amendment of the plaint the plaintiff has suppreésed
the second agreement -» Ex.D.l dated 10.06.1992.
Trial Court rightly held that the plaintiff was not rea.{1giv:/lg’ 0
to perform his part of obligation. Learnedjbcounslelfforgthe’de1endant3_T
support the impugned judgment. of_t.he Tidal’*Court.”T-tellialncelig
placed on the following decisions.
a. Tarlok Singh Vs.’X(§jgy I<'jnm;gfitsa_m§a1=wa1, (1996) 8 sec
367 . 9 ., .
b. .V’is’liwar:1hhai§:_3 Lax.mina.rayan (dead)
lfhroi1gh’L.l?ls*llzi11dVanother,._.(2001) 6 scc 163
c.’ Man”‘Kaur V(dr:cea,s:e’d.– LRS) Vs. Hartar Singh Sangha,
” 2.0:I0..i_AiR ‘SCW-6’i 98
81 .Heard.VVVarguments on both the side and perused the entire
anpeal pap¢rsl;’.j .. V V 1
!e\J”\..
fl”
9. The suit is based on the agreement of sale dated 23.12.1988
Ex.P.l and the advance receipt dated .E0.06.l992 as per
These two documents are not in dispute. In Ex.P.8 (a) M thc~.la\t4§fe1*.7:;_iA’
notice dated 10.09.1992 it is specifically stated that afterbtlze 9
payment of second advance amount as per ‘def’enclants_ f
failed to perform. their part of obligation. Therefore under
plaintiff called upon the defendants. _performip_iA their ‘apart of
obligation. Since the defe11d_a1i.ts failed Vi’to._ perform their part of
obligation the plaintiff filed thesuitVon._i2 the plaint it is
specifically stated wasireatiy_ia’nidwilling to perform his
part of obligation Aar’;r:§_defend’a.r._1ts-were.’ avoiding to perform their part
of obligation. l5.W.l deposes that he was ready
and wi};l.1.ng…to perform his part of obligation and it was the
:”V.Vdefencla11ts “eyaded to perform their part of obligation and
therefor-e.he’ 1ia»s.f11é;a the suit.
+1 .10. Though the suit was filed on 21.11.1992 :1: was only for
._p’r:_.ari’c. injunction and there was no prayer for a decree of specific
-‘-x
rxl
i
performance of agreement of sale. it was only on 28.0i.l997l”t1ie
plaintiff filed an application for amendment of the A’
incorporate additional prayer for decree of specific of
agreement of sale. it was on 31.05.1997 the .9
application filed by the plaintiff ppe1>;n__ittingl”tQ_i’amendthe _n1_eint9_i’;hy”
incorporating additional prayer for decree:’of_specific._Vpert’orriiance of
agreement of sale. Learned for contends that the
prayer for decree of pspecificA.perforrriance to have been
incorporated in the suit and
therefore the of this contention
reliance placVed.”_oy_n’*.ta’tjudgrnent of this Court in M.L.
Shankaranarayana Rao Vs.’ Corporation of the City of Bangalore,
1973 itwherein it is held that amendment relates
bacl<,t_o' theidatep or institution of the suit. on the other hand learned
co'uns'e.l__dei5efidants relying on a judgment of the Supreme
Court in th_e'cas;e of Tarlok Singh Vs. Vijay Kumar Sabharwal,
9' :'9.v4."'*(fl.9996}__8 SCC 367 contends that the suit for perpetual injunction is
diff::rent"frorn the suit for specific performance. The suit for specific
_..,
€"-.1
fl"
K
performance claimed by way of amendment to the plaint will be
deemed to have been instituted only when the Court order allowing
the amendment and it will not relate back to the date of ” 3
suit. Further the Supreme Court in the case of Vishwa_mbh_ar
others Vs. Laxminarayan (dead) throughliiisilaridv another;
SCC I63 held that the amendment _thoua
relate back to the date of filing and of
limitation. In View of the lawpdeclaredlipbghlthelplbttpremeCourt in the
two decisions referred to the learned
Single Judge of this inilthe opfiillj/ll.i;.”Shankaranarayana Rao
Vs. oi’v.’th.e__fl£Ceity«lol”l~.B_angalore is no more a good law.
Therefore thesuit for.specificperformance filed by the plaintiff is
deemedito ehave filed” on 31.05.1997 when the Trial Court
allowed the pplaijntiff to amend the plaint to incorporate the prayer for
de’cree’___of”‘spevc_ifie:’performance. If the date of suit for specific
_perforii1anc~e iisvtlaken on 31.05.1997, then the same is barred by
” ” 2 l”li4mitati_on.
r-..w
3″
h. properly bhialde i’can1nio’t V
11. In Ex.P.4 – the receipt executed by the defendants
acknowledging the additional. advance from the piaintiff 2.
have agreed to extend the period of agreement of sale by-«lanotlieiri 0
year from that date. If that is so, the periodmof one ‘i{ear« s:ijec_ifi:ed–:i’n
Ex.P.4 will expire on 09.06.1993.’ The lperiod’ of
09.06.1993 will expire on 08.06.199’6:g:l’The to
amend the plaint incorporate p’t’ajte’r.e..;1Aecreel Viloflspecific
performance was on 31.05 admitted facts the
suit of the plaintiff the finding
recorded by theTri’;ti_E;”ottrt hol.ditig–.t:1iat”the suit of the plaintiff is
barred by ‘limita.t.iorii:3 .snp;)01’ted -by admitted evidence On record and
the same is iri._accordanc’e}wi,.th’*–theJl.aw declared by the Apex Court
in the t;ie<':i3.ions referred to Supra. I find no justifiable ground to
in inlteifere thiefinding of the Trial Court.
""le2i"A'dmiittedly in the legal notice — EX.P.8(a) and in the
pIaint.__the has not pleaded anything with regard to the
ix".-'.._'S'GCOHd agi-cement dated 10.06.1992 as per Ex.D. 1. But P.W.l in his
?\–r
dot.
CI’OSS-CX21I’I1iI’1£1[lOl1 admits his signature on Ex.D.1.. P.W.l pleads
ignorance as to under what circumstances he affixed his signature on
Ex.D.1. Further P.W.l says that out of friendship he has
signature on }3x.D.l. This evidence on record clearly establishyes if
fact that the plaintiff admitted Ex.D.1. A i’eadi’n«g ofi..&Ex_:,D;ipl:’ specifies
that parties have agreed to enhance the”.sal’»?,iconsidera*ti.on
Rs..1,00,000/– to Rs.4,50,000/–. Wheifthe parties haf»;ei”a_gi?¢’¢~;d to
enhance the sale consideration’ to then ‘necessary
for the plaintiff to plead and prove he and willing to
pay the balance consiidenation Neither in
Ex.P.8 the lawyeirfifinotice the plaint nor in the evidence of
P.W.l he hasastatedithat was-ready and willing to pay the balance
sale con’s1deration”‘ofiiRs.4i’i)0,000/–. In the absence of any such
eyhlence the Trial Court rightly concluded that the
plaiiitiff and willing to perform his part of obligation.
V _Againi”this of the Trial Court is supported by evidence on
“record_and the same is in accordance with law.
5’–.£
(ii
13. It is not in dispute between that there came to be an
agreement of sale on 23.12.1988 as per Ex.P.l between the partiescplz
is relevant to extract Clause — 2 of the agreement of
and the same reads as under: _ __ ._
“The VENDORS have th’i’s~–day–l_4 pot V
PURCHASER vacant physical “poss’essilonlic».of~
schedule land and parted withthe avais_lvable title
of the schedule land to the lPrU:RCHASER_ [‘3 plairtfl
performance of Agreernent tc-* s’elll_: _i}.’UR(lIlHASER
acknowledges the
14′, As aglarn’st…the.tcontents of a written document _ Ex.P.1
there is no other rnaterialori .record. to show that the plaintiff was not
put in possession ofthelplaint schedule property in part performance
of agreemenlt sale. Except the oral interested testimony of D.W.1
st’aIin’g__that a”ct_t_1a’1:;’physica1 possession was not handed over to the
V _p1a.intiff thereisll no other evidence on record. On the other hand
RV’! 41 __ in evidence deposed that subsequent to the agreement of
l.l_y1~_salel¥Ei<.P.3 he developed the schedule property by investing 21 sum
r-~.lh"
an
of Rs.90,000/». P.W.l further deposed that he has dug a borewell in
the plaint schedule property by investigating money. Thiszfioral
evidence of P.W.l is not seriously disputed and challen.ged_p’iri’
cross–exarnination. The Trial Court without consideringiithe ‘contents
of Ex.P.1 and the oral evidence of the pa;=jties co’ii2niii_tted ei:ro__r”iri__ f
holding that the plaintiff is not in possess.ionA oi’? the plfluilit Vschedjulevl
property. The reasoning of the Trialitloxurt_thatviiu-adder’v’the:'{3eneral
Power of Attorney — Ex.Pi;2″‘idate«.3li plaintiff was
permitted to look after the plaint_vschedulefyppropeifif subsequently
the same is revoked’ iawyerisiioitice as per Ex.P.l2
and therefore ~..p_ossession of the plaint schedule
property is contrary to. evidence on record. Therefore
the finditgigof the Courton issue No. 3 is liable to be set aside.
reasons stated above, the following;
0 R D E R
A. ,.l,. “‘”l”he appeal is partly allowed.
-v-i.
N!
U
/.
i9
11. The impugned judgment and decree of the Trial Court
dismissing the suit of plaintiff for decree ofjspecific
performance of agreement of sale is hereby ;coni’irr.nied._.__ T
III. The judgment and decree of the TrialCojuI’tt.jin:s.ofar
it relates to finding on issue Nosaf: and 6 are’hereby_ f
set aside.
IV. The suit of the plaintilffor permanent
injunction and also
respondent decreed’-restraining them
possession and
schedule property except by
T
jg The jointly or severally or respondent No. 5
.j_a.lone are at liberty to work out their remedy to recover
:il”poss~fess.ion of the plaint schedule property in
accordance with law, if they are so entitled.
sci)-
ll ‘T “L.Rsl3o1 120:0. JUQGE