THE HONOURABLE SRI JUSTICE T.VINOD KUMAR
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No.5 of 2023
JUDGMENT: (per Hon'ble Smt. Justice P.Sree Sudha)
This Civil Miscellaneous Appeal is filed against the Order
dated 16.09.2022 in I.A.Nos.926 of 2019 in O.S.No.32 of 2016
passed by the learned Principal District Judge, Bhongir.
2. Defendants in the suit filed I.A.No.927 of 2019 under
Section 5 of Limitation Act, 1963 before the trial Court to
condone the delay of 217 days in filing the petition to set aside
the ex-parte decree dated 02.01.2019 and also filed another
application being I.A.No.926 of 2019 under Order 9 rule 13 of
C.P.C to set aside the ex-parte decree dated 02.01.2019. The
trial Court considering the arguments of both sides dismissed
both the applications. Aggrieved by the said Order, this Civil
Miscellaneous Appeal is preferred.
3. The Appellants mainly contended that the trial Court did
not consider the medical certificate issued by the Civil Surgeon.
They got strong case in the suit as mentioned in the written
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statement filed by them. If the application is not allowed, they
will sustain irreparable loss. Therefore, requested the Court to
set aside the exparte decree.
4. In the Counter filed by respondent No.1/plaintiff, he
stated that he filed suit for enforcement of agreement of sale dated 18.9.2014. In the affidavit it was not mentioned the date of termination of agreement of sale on which plaintiff informed his inability to pay the sale consideration and they tried to sell the property to the third properties and approached the Court by suppressing the facts and tried to mislead the Court. He already deposited the entire sale consideration in the E.P proceedings i.e., E.P.No.33 of 2019 in O.S.No.32 of 2016. Medical certificate filed by the appellants/defendants is not supported by any prescription nor diagonosis reports or medical bills to show that defendant No.5 underwent treatment for one year and it is a fabricated document. Appellants have not shown any reason for the delay and they filed petition only to protract the litigation.
5. He further stated that appellants, respondents No.2 & 3 herein are owners of the suit schedule property. They offered to sell the property to him for a valuable sale consideration of 3 Rs.75,48,750/- and entered into agreement of sale on 18.09.2014 and received advance amount of Rs.41,50,000/- and later they were postponing the matter on one or other pretext, as such he gave legal notice on 04.11.2015, but they did not give any reply and thus he filed suit for specific performance in O.S.No.32 of 2016. Though they filed Vakalat on 29.08.2018 and 29.11.2018 they did not file written statement within the statutory period, as such exparte decree dated 02.01.2019 was passed in favour of respondent No.1/plaintiff. Appellants are having knowledge about the proceedings of the suit, but they did not contest the matter. Later, he filed E.P and sent notices to the appellants. At that stage, appellants filed I.As with an invented ground taking support of medical certificate and the trial Court considering all the aspects rightly dismissed both the I.A's by a Common Order dated 16.09.2022 after hearing both the parties. They filed the present Civil Miscellaneous Appeal only to extract more amount. There are no grounds to allow the present appeal and therefore requested the Court to set aside the present appeal.
6. Perusal of the record shows that O.S.No.32 of 2016 was filed by one Sunil Bhandari against defendants No.1 to 6 for specific performance of agreement of sale. Plaintiff stated that 4 defendants are the absolute owners and possessors of the suit schedule property measuring an extent of Acs.45 - 30 gts in Sy.No.127 situated at Kondapur Village, Thurkapally Mandal. When they offered to sell the said properties to the plaintiff for a total sale consideration of Rs.75,48,750/-, he agreed to purchase the same and paid Rs.23,00,000/- on 18.09.2014 towards advance and earnest money, and by receiving the said advance amount, defendants executed an agreement of sale in favour of plaintiff on Rs.100/- Non-Judicial Stamp Paper and defendants agreed to receive the balance sale consideration of Rs.52,48,750/- within 8 months from the date of said agreement of sale and they also agreed to conduct survey of the suit schedule property in the presence of plaintiff before execution of the sale deed. Plaintiff also made the payment of Rs.18,50,000/- on different dates and thus defendants received a total amount of Rs.41,50,000/-, but later they did not execute registered sale deed and postponing the same on one or other pretext, as such he issued legal notice on 04.11.2015. The said notices were served upon the defendants No.1 and 6. The notices addressed to the defendants No.2 to 4 were got returned, as such he filed suit for specific performance. 5
7. In the written statement filed by the defendant No.5 along with the I.A's, he admitted the execution of agreement of sale, but contended that the balance amount was not paid within the stipulated period and also informed that plaintiff is not in a position to pay the balance sale consideration, as such defendants sold away the suit schedule property to the third parties and they are in possession of the same. Defendants also disputed the receipts filed by the plaintiff except the receipt for advance sale consideration and stated that the said receipts were created falsely by the plaintiff and also stated that plaintiff knowing fully about the alienation of the suit schedule property to the third parties filed false suit and the suit itself is not maintainable. He mainly contended that when there is no agreement subsisting between the plaintiff and the defendants in respect of suit schedule property, the question of execution of registered sale deed in favour plaintiff does not arise, therefore requested the Court to dismiss the suit. The said written statement was adopted by defendants No.1 to 4 and 6 in its entirety.
8. The defendants in the suit received summons from the Court on 29.08.2018 and sought time for filing written statement on 29.11.2018, but they did not file the same. It is 6 also contended that defendant No.5 was suffering from ill health from 05.11.2018 to 05.09.2019 and he was advised bed rest. After recovery when he enquired, he came to know about the exparte decree for non-filing of the written statement and thus he enclosed the written statement along with the application. As the defendants in the suit failed to file the written statement they were set exparte and the exparte decree was passed on 02.01.2019. Aggrieved by the said Judgment, defendants in the suit filed two I.A's for condoning delay and to set aside the exparte decree, but the same were dismissed by the trial Court. Aggrieved by the said Order, this Civil Miscellaneous Appeal is preferred by the defendants.
9. The learned Counsel for the defendants argued that perusal of the written statement shows that it was filed by defendant No.5 in detail and the said written statement was adopted by the other defendants. The first respondent/plaintiff stated that after the decree of suit on 02.01.2019, he filed E.P.No.33 of 2019 and also issued notices to the defendants. After receiving the same, they appeared in E.P proceedings on 06.09.2019 and filed two I.A's to condone the delay and to set aside the exparte order on 06.09.2019 itself. The trial Court observed that defendants No.1 to 4 and 6 have not filed any 7 affidavit merely because defendant No.5 was given the responsibility to look after the suit affairs and they can't plead that they have no knowledge about the suit proceedings till the receipt of summons in E.P. Even in the written statement enclosed to the applications, defendants contended that they sold away the property to the third parties, but they have not filed any registered sale deed to show when it was sold to the third parties and they have not filed any termination letter issued to the plaintiff in the suit.
10. Admittedly, more than half of the amount was received by defendants prior to the issuance of legal notice. They did not give even reply to the legal notice. Even if the medical certificate issued in favour of the defendant No.5 is to be believed, it is for the other defendants to take care of the suit proceedings through their Counsel on record, but they failed to do so. Perusal of the entire record clearly shows that defendants in the suit entered into an agreement of sale with the plaintiff for Rs.75,48,750/-, on the same day they received Rs.23,00,000/- and subsequently, they received further amounts totalling to a sum of Rs.40,50,000/-. Plaintiff in the suit filed the agreement of sale and the receipts to substantiate his version. He got issued legal notice and also filed suit for specific performance, 8 but the defendants instead of filing written statement kept quiet for a period of more than one year without any proper reason and exparte decree was passed in favour of the plaintiff and E.P proceedings were also initiated by him. Only after the receipt of notices in the E.P proceedings, defendants filed two applications for condoning delay and to set aside the exparte decree. The trial Court considering all the factors rightly dismissed both the applications.
11. It is patently clear that the said applications were filed only to protract the litigation and to avoid registration of sale deed may be in view of hike in prices of lands subsequently. No doubt reasonable opportunity is to be given to the other side to dispose of the suit on merits. This is not a case where the opportunity was not given, but the opportunity given was not availed by the defendants. When they know about the pendency of the suit proceedings, they have to file the written statement within the stipulated period. Even if it is believed that defendant No.5 was sick and could not appear before Court and could not give instructions, they ought to have taken time for filing written statement through their Counsel, but they failed to do so, as such their right to file written statement was forfeited. In spite of having knowledge of the suit proceedings, they did not evince 9 any interest to know about the stage of the suit proceedings, they kept quiet and thus exparte decree was passed and when E.P was filed they appeared before the Court by filing the above I.A's and the said subsequent conduct of the defendants in the suit clearly shows that they are reluctant to execute the registered sale deed. Plaintiff clearly stated that he deposited the balance sale consideration in the E.P proceedings. Therefore, this Court finds no merits in the present Civil Miscellaneous Appeal and there is no infirmity in the Order of the trial Court and it needs no interference.
In the result, the Civil Miscellaneous Appeal is dismissed confirming the Order of the trial Court in I.A.No.926 of 2019 in O.S.No.32 of 2016 dated 16.09.2022. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________
JUSTICE T.VINOD KUMAR
_________________________
JUSTICE P.SREE SUDHA
DATED: .03.2023
tri
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THE HONOURABLE SRI JUSTICE T.VINOD KUMAR
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No. 5 of 2023
DATED: .03.2023
TRI