-:1:- IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13? DAY OF OCTOBER 2009 BEFORE THE HON'BLE MRJUSTICE V.G.SABI-IAHIT R.F.A.NO.901[2001 BETWEEN: 1. M/S. M.G.RANGARAJA URS & CO.. REGISTERED PARTNERSHIP CONCERN. HAVING ITS OFFICE AT PARIJATHA HOUSE, LALITHMAHAL PALACE ROAD. MYSORE. 2. SMT.N.BH_ARATHI URS D/O.LATE DEVARAJ URS. PARIJATI-IA. LALITHMAHAL ROAD. MYSORE. 3. SR.I.U.RAVISHANKAR. S/O.U.S.NARAYANRAO MAJOR. R/O.NO.52, 7TH MAIN. 330 BLOCK, JAYALAKSHMIPURAM MYSORE. .. APPELLANTS (BY SR1 GBALAKRISHNA SI-IASTRY, ADV.) AND: I. SR1. DHAJEE S.M. SUHAIL. S/O. LATE SYED MOHENDEEN SAHEB. MAJOR, R/O.D.NO.1049. K.R.HOSPITAL ROAD. MYSORE. 2. SRI.P.M.B.ARA.DHYA. S/O.S.RUDRAIAH, MAJOR. D NO.26. VISHWANATHA ROAD, MADHAVANAGAR. BANGALORE. .. RESPONDENTS [BY SRI T.A.KARUMBAIAH. ADVOCATE.) ##1##?! THIS R.F.A. IS FILED U/S. 96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DT.2/6/2001 IN O.S.NO.223/91, ON THE FILE OF THE PRL. CIVIL JUDGE [SR.DN.), MYSORE, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF THE AGREEMENT, FOR PERMANENT INJUNCTION AND FOR MANDATORY INJUNCTION. THIS APPEAL BEING RESERVED AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, COURT DELIVERED THE FOLLOVVING: J U D G M E N T
This appeal is filed by the defendants l, 2 and 4 in
O.S. No.223/91 on the file of the Principal Civil Judge
{Sr.Dn.) Mysore, being aggrieved by the judgment and
decree dated 2/6/2001 wherein, the trial Court has
decreed the suit of the plaintiff and directed defendants
l to 3 to execute the registered lease deed in respect of
Shop No.6 located at Urs Complex, ground floor and to
hand over the vacant possession of the said shop
premises to the plaintiff within 3 months from the date
of the order by collecting the balance advance of
Rs.l,50,000/–, failing which plaintiff is at liberty to
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secure the lease deed and the possession of the suit
schedule shop from the defendants 1 to 4, through
Court by depositing the said amount of Rs. l,50,000/–.
2. The essential facts of the case leading upto this
appeal with reference to the rank of the parties before
the trial court are as follows:
The plaintiff filed O.S.223/91 on the file of the
Prl.CiVil Judge (Sr.Dn.], Mysore, on- 20/9/1991,
seeking for specific performance of agreement dated
17/3/1987 and for a direction to the defendants to
execute the registered deed of lease and part with
possession of the schedule property in favour of the
plaintiff and for perpetual injunction restraining the
defendant or any person claiming under him from
handing over possession of the plaint schedule property
in favour of any person other than the plaintiff and for
costs and other incidental reliefs.
3. It is averred in the plaint that defendant had
entered into a long term lease with the Church of South
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third person into the suit property
illegally?
2] Whether plaintiff proves that the
defendant had entered into an agreement
with him on 17/3/1987 as contended in
para No.2 of the plaint’?
3] Whether plaintiff proves that court fee
paid is proper?
8. On behalf of the plaintiff, plaintiff was examined
as P.W.1 and got examined P.W.2, who was present at
the time of execution of the agreement and got marked
Exs.P.l to £3.21 and closed his side. Defendants 1 to 3
did not adduce any oral or documentary evidence in
rebuttal to the evidence let in by the plaintiff. The 41″
defendant alone has examined himself as D.W.l and
got marked EX.D.l and closed his side.
9. The learned Civil Judge after hearing the
contentions of the learned counsel appearing for the
parties and after appreciating the oral and documentary
evidence placed on record by his judgment. dated
2/6/2001, answered Issue Nos. 1. 2, 5 and additional
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issue No.1 and 2 in the affirmative and Issue Nos.3 and
4 in the negative and issue No.6 as per the final order
and accordingly, decreed the suit of the plaintiff by
passing the following order:–
“Suit of the plaintiff is decreed with
costs as under:–
Defendants I to 3 are directed to
execute the registered lease deed in respect
of shop No.6 located at Urs Complex, ground
floor and to hand over the possession of the
said shop premises to the plaintiff within 3
months from the date of this order by
collecting the balance advance of Rs.l.5O
lakhs, failing which the plaintiff is at liberty
to secure the lease deed and the possession
of the suit schedule shop from the
defendants 1 to 4, through court by
depositing the said amount of Rs.l.5O
Iakhs.”
10. Being aggrieved by the said judgment and
decree passed by the trial Court, decreeing the suit of
the plaintiff, the defendants 1, 2 and 4 have preferred
this appeal.
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11. I have heard the learned counsel appearing
for the appellants and the learned counsel appearing
for the respondents.
12. Learned counsel appearing for the appellants
submitted that the defendants have admitted execution
of the lease deed in favour of the plaintiff on
17/3/1987. The plaintiff has not performed his part of
the contract by paying Rs.50,000/– and therefore there
is breach of contract by the plaintiff himself and the
agreement of sale and therefore, the agreement was
rescinded due to efflux of time and the plaintiff cannot
maintain the suit as he is not entitled to any of the
reliefs as sought for in the suit. The trial Court has not
property appremated the oral and documentary evidence
placed on record and the trial Court ought to have
dismissed the suit of the plaintiff by answering all
issues in favour of the defendants.
13. Learned counsel for the respondents
submitted that the trial Court has passed the judgment
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against the defendants is justified or
calls for interference in this appeal.
3) Whether the judgment. and decree
passed by the trial Court decreeing the
suit in favour of the plaintiff is justified
or calls for interference in this appeal?
4) What order’?
I answer the above points for determination as follows:-
Point No.1: The finding of the trial Court is justified
and does not suffer from any error or illegality as to call
for interference in this appeal.
Point No.2: The finding of the trial Court is
justified and does not call for interference in this appeal.
Point No.3:- The judgment and decree passed by
the trial Court is justified and does not suffer from error
or illegality as to call for interference in this appeal.
Point No.4:—- As per the final order.
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In View of the answers to Point Nos.1 to 3, the
appeal is liable to be dismissed for the following
I’€ElSO1′}SI-
Point Nos.1 to 41- All these points are considered
together since they are interconnected and to avoid
repetition.
15. Learned counsel appearing for the
appellants has taken me through the pleadings of
P.Ws.1 and 2 and the contents of the documents
Exs.P.1 to £3.21 and also the evidence of the 4″!
defendant D.W.l and EX.D. 1.
16. I have scrutinized the material on record and
reappreciated the oral and documentary evidence
adduced before the trial Court in the light of the
contentions urged by the learned counsel appearing for
the parties in this appeal.
17. it is clear from the scrutiny of the material on
record including the evidence adduced by the parties
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he was ready and willing to pay Rs.1,50,000/– second
instalment of amount to be paid to the defendants but
the defendants did not receive the said amount and
represented to the plaintiff that the said amount can be
paid at the time of registration of the lease deed and
possession would be given to him as per the agreement
and therefore, in the absence of any evidence elicited in
the cross–examination of P.W.1 to disbelieve the
evidence regarding readiness and willingness to
perform the contract and in the absence of any oral
and documentary evidence adduced by defendants 1 to
3, it is clear that the contention of the plaintiff that he
was ready and willing to perform his part of the contract
has been proved.
19. The evidence of defendant. No.4, would not be
of any help to the defendants l to 3 as it is not open to
the subsequent purchaser to raise any objections
regarding readiness and willingness on the part of the
plaintiff and performed his part of the contract as per
the decision of the Horfble Supreme Court reported in
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