Karnataka High Court

Sri Uttamanambi vs Sri K L Srinivasa Murthy on 22 February, 2024

Author: P.S.Dinesh Kumar

Bench: P.S.Dinesh Kumar

                            1
                                                RFA No.1271/2018
                                           C/W RFA No. 1266/2018



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 22ND DAY OF FEBRUARY, 2024
                         PRESENT
      THE HON'BLE MR.P.S.DINESH KUMAR, CHIEF JUSTICE
                           AND
     THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
               RFA NO. 1271 OF 2018 C/W
               RFA NO. 1266 OF 2018 (SP)

IN RFA No. 1271/2018

BETWEEN:

M/S FANTASY BUILDERS AND
ENGINEERS PVT. LTD., PRESENTLY AT,
S.N. PRIDE, 5/6, 1ST CROSS
MADIWALA NEW EXTENSION
BENGALURU-560 068
REP. BY ITS MANAGING DIRECTOR
MR. MOHAMMED NAZEER AHMED
FORMERLY AT NO.8, ARCO TOWERS
LALBAGH ROAD, BENGALURU-560 027                  ...APPELLANT

(BY SHRI. D.L.N. RAO, SENIOR ADV. FOR
    SHRI. C. SRINIVASA, ADV.)

AND:

1.      SRI. K.L. SRINIVASA MURTHY
        AGED ABOUT 86 YEARS
        SRI. LAXMINARAYANA SETTY
        R/AT FLAT NO. 402
        SREE POORNA PRAJNA APARTMENTS
        NO.347/2, GANGADHAR LAYOUT
        VIJAYANAGAR, BENGALURU-560 040.

        SRI. T.R. SAMPATH KUMAR
        S/O LATE SRI. RAJAGOPAL CHETTIAR
        AGED ABOUT 82 YEARS
        R/AT NO. 97, DISPENSARY ROAD
        CIVIL STATION, BENGALURU-560 025
        SINCE DEAD BY HIS LRs.
                               2
                                               RFA No.1271/2018
                                          C/W RFA No. 1266/2018



2.     S. DEVARAJ
       AGED ABOUT 52 YEARS
       S/O LATE SRI. T.R. SAMPATH KUMAR
       R/AT NO. 92, DISPENSARY ROAD
       CIVIL STATION
       BENGALURU-560 025

3.     S. GOPIMURALI
       S/O LATE SRI. T.R. SAMPATH KUMAR
       AGED ABOUT 48 YEARS
       R/AT NO. 92, DISPENSARY ROAD
       CIVIL STATION, BENGALURU-560 025

4.     SMT. SRILAKSHMI
       AGED ABOUT 49 YEARS
       S/O LATE SRI. T.R. SAMPATH KUMAR

5.     SMT. GEETHA S. BABU
       AGED ABOUT 47 YEARS
       S/O LATE SRI. T.R. SAMPATH KUMAR

6.     SMT. ANURADHA
       S/O LATE SRI. T.R. SAMPATH KUMAR
       AGED ABOUT 42 YEARS

7.     SMT. RANGANAYAKI
       AGED ABOUT 43 YEARS
       S/O LATE SRI. T.R. SAMPATH KUMAR

8.     SMT. MOHANA KUMARI
       AGED ABOUT 37 YEARS
       S/O LATE SRI. T.R. SAMPATH KUMAR

       RESPONDENTS NO. 5 TO 8
       ARE ALL R/AT NO.97
       DISPENSARY ROAD, CIVIL STATION
       BENGALURU-560 025

9.     T.R. UTHAMANAMBI
       SINCE DEAD BY HIS LR

9(A)   U. VENKATESH
       S/O LATE T.R. UTHAMANAMBI
       AGED ABOUT 55 YEARS
       R/O NO. 30/2, LAKSHMANA MUDALIAR STREET
                             3
                                              RFA No.1271/2018
                                         C/W RFA No. 1266/2018



       SHIVAJINAGAR, BENGALURU-560 001

9(B)   T.U. RAMANUJAM
       S/O LATE T.R. UTHAMANAMBI
       AGED ABOUT 53 YEARS
       R/O NO. 1/1E, 3RD STREET
       DHARMARAJA KOVIL STREET CROSS
       SHIVAJINAGAR, BENGALURU-560 001

9(C)   SMT. C. PADMAVATHI
       D/O LATE T.R. UTHAMANAMBI
       AGED ABOUT 49 YEARS
       R/AT NO. 14, NANDANAM SINGH LANE
       NARAYANA PILLAI STREET CROSS
       SHIVAJINAGAR, BENGALURU-560 001
                                          ...RESPONDENTS

(BY SHRI. D.R. RAVISHANKAR, SENIOR ADV. FOR
    SHRI. RAMU SREEKANTAIAH, ADV. FOR R1;
    SHRI. S.K.V. CHALAPATHY, SENIOR ADV. FOR
    SHRI. S.V. SRINIVAS, ADV. FOR R2 AND R3;
    R4 TO R9 (A) TO (C) ARE SERVED)

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 07.06.2018 PASSED IN OS.NO.3352/1993 ON
THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE,
BENGALURU CITY, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE.

IN RFA No. 1266/2018
BETWEEN:

1.     SRI. UTTAMANAMBI
       SINCE DEAD BY LRs.

1(A)   U. VENKATESH
       S/O LATE UTTAMANAMBI
       AGED ABOUT 55 YEARS
       R/AT NO.30/2 LAKSHMANA MUDALIAR
       STREET, SHIVAJINAGAR
       BANGALORE-560 001.

1(B)   T.U. RAAMANUJAM
       S/O LATE UTTAMANAMBI
                            4
                                              RFA No.1271/2018
                                         C/W RFA No. 1266/2018



       AGED ABOUT 53 YEARS
       R/AT NO.1/1E 3RD STREET
       DHARMARAJA KOVIL ST. CROSS
       SHIVAJINAGAR, BANGALORE-560 001.

1(C)   SMT. C. PADMAVATHI
       D/O LATE UTTAMANAMBI
       AGED ABOUT 49 YEARS
       R/AT NO.14, NANDARAM SINGH LANE
       NARAYANA PILLAI STREET CROSS
       SHIVAJINAGAR
       BANGALORE-560 001.

2.     SRI. S. DEVARAJ
       S/O LATE T.R. SAMPATH KUMAR
       R/AT NO.92 DISPENSARY ROAD
       CIVIL STATION, BANGALORE

3.     S. GOPIMURALI
       S/O LATE T.R. SAMPATHKUMAR
       AGED 44 YEARS
       R/AT NO.92 DISPENSARY ROAD
       CIVIL STATION, BANGALORE            ... APPELLANTS

(BY SHRI. S.K.V CHALAPATHY, SENIOR ADV. FOR
    SHRI. S.V. SRINIVAS, ADV.)

AND:

1.     SRI. K.L. SRINIVASA MURTHY
       S/O LAKSHMINARAYANA CHETTY
       AGED ABOUT 75 YEARS
       R/AT NO.402, SREE POORNA PRAJNA
       APARTMENTS, NO.37/2
       GANGADHAR LAYOUT, VIJAYANAGAR
       BANGALORE-560 040.

2.     SMT. SRILAKSHMI
       D/O LATE T.R. SAMPATHKUMAR

3.     SMT. GEETHA S. BABU
       AGED ABOUT 51 YEARS
       D/O LATE T.R. SAMPATHKUMAR

4.     SMT. ANURADHA
                                   5
                                                       RFA No.1271/2018
                                                  C/W RFA No. 1266/2018



       AGED ABOUT 46 YEARS
       D/O LATE T.R. SAMPATHKUMAR

5.     SMT. RANGANAYAKI
       AGED ABOUT 47 YEARS
       D/O LATE T.R. SAMPATHKUMAR

6.     SMT. MOHANAKUMARI
       AGED ABOUT 39 YEARS
       D/O LATE T.R. SAMPATHKUMAR

       ALL ARE RESIDING AT NO.97
       DISPENSARY ROAD, CIVIL STATION
       BANGALORE-560 001                           ...RESPONDENTS

(BY SHRI.D.R.RAVISHANKAR, SR. ADV. FOR
    SHRI. SARAVANA, ADV. FOR R1;
     R2 TO R6 ARE SERVED)

       THIS RFA FILED UNDER SECTION 96 OF THE CPC.,
1908    AGAINST     THE    JUDGMENT         AND    DECREE        DATED
07.06.2018 PASSED IN O.S.NO.3352/1993 ON THE FILE OF
THE    XI   ADDL.   CITY    CIVIL     JUDGE,      BANGALORE       CITY
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.


       THESE APPEALS, HAVING BEEN HEARD AND RESERVED
FOR    JUDGMENT      ON        23.01.2024      COMING       ON     FOR
PRONOUNCEMENT             OF       JUDGMENT          THIS         DAY,
T.G. SHIVASHANKARE GOWDA                 J., PRONOUNCED THE
FOLLOWING:-


                           JUDGMENT

In these appeals, the legal representatives of

defendant No.1 and defendant No.2 and a third party

M/s.Fantasy Builders and Engineers Pvt.Ltd., have

challenged the judgment and decree dated

07.06.2018 passed in O.S.No.3352/1993 on the file

of the XI Additional City Civil Judge, Bangalore City

(CCH No.8) (for brevity 'the Trial Court') decreeing

suit of the plaintiff for specific performance.

2. For the sake of convenience, parties shall be

referred to as per their status before the Trial Court.

3. Brief facts of the case are, defendants are

the absolute owners in possession and enjoyment of

6 acres of land in Sy.No.92 of Singanasandra village,

Bangalore South Taluk. For their legal necessity,

defendants offered to sell 3 acres of converted land

on southern portion of said 6 acres (for short 'the

suit property') and the plaintiff agreed to purchase

the same for a consideration of Rs.18,90,000/- and

parties have entered into an agreement to sell on

03.01.1990. The defendants have received advance

of Rs.5 lakhs from the plaintiff. As per Clause No.5

of the agreement, defendants have agreed to

transfer the property free from all encumbrances,

execute the sale deed within four months from the

date of agreement and to deliver the possession to

the plaintiff or his nominees on the date of

registration of the sale deed.

3.1. As per Clause 6(a) of the agreement,

defendants have permitted the plaintiff to form the

sites in the suit property, the defendants have also

agreed to execute the sale deed either in the name

of the plaintiff or his nominee and agreed to co-

operate with the plaintiff in getting necessary

permission from the competent authorities by

furnishing necessary documents and deeds.

Thereafter they did not co-operate, avoided the

plaintiff from getting necessary permission from the

competent authorities to complete the sale

transaction. They failed to furnish title deeds and

other documents for getting necessary sanction.

Inspite of several requests and demand, defendants

on one or the other reason postponed their part of

duty. The plaintiff has written several letters and

reliably learnt that since the prices of the lands have

gone up, they were not willing to sell the suit

property at the agreed rate.

3.2. Plaintiff was always ready and willing to

perform his part of contract, but due to non-

cooperation by the defendants, the sale transaction

could not be concluded. Plaintiff issued a notice to

the defendants on 26.04.1993 calling upon them to

execute the sale deed by receiving balance

consideration. The defendants in their reply notice,

blamed the plaintiff for not getting the permission

early. Further in their reply notice stipulated eight

days' time for the plaintiff to get registration of the

sale deed by paying balance consideration, knowing

fully well that permission was not obtained and they

also indicated that if the same is not complied within

the said period, the agreement would get cancelled.

The said reply is only an eye-wash, with no intention

to comply with the terms of the contract. The

plaintiff has also issued a rejoinder to the defendants

expressing his ready and willingness to perform his

part of contract and requested the defendants' co-

operation in getting permission and to complete the

sale transaction, which was not responded by the

defendants.

3.3. As per Clause No.6(e) of the agreement,

defendants have no power to rescind the agreement

unilaterally. The agreement is in force and

enforceable. With these averments, the plaintiff has

filed the present suit.

4. Defendants have opposed the suit by filing

written statement interalia admitting the agreement.

It is their defence that, from the date of agreement

till they received the notice from the plaintiff, they

were requesting him to take necessary steps to get

permission, pay balance consideration and get the

sale deed registered. Defendants were ready to

execute the sale deed on the date of agreement

itself and even subsequently. Plaintiff did not obtain

the permission from the concerned authorities, more

than 20 times defendants approached him, but he

pleaded his inability on the ground of having no

money. Plaintiff postponed the dates to complete

the sale transaction from the beginning though the

period of time agreed was four months and the

plaintiff did not perform his part of contract.

4.1. Notice issued by the plaintiff was suitably

replied on 28.04.1993, offering him to obtain the

sale deed within eight days by paying balance

consideration, but he did not come forward. By

notice, they have cancelled the agreement and

therefore, plaintiff had no right to file the present

suit. The agreement is dated 03.01.1990, the suit

has been filed on 31.05.1993 and it is barred by

time. At no point of time, plaintiff was ready and

willing to perform his part of the contract. Inspite of

several opportunities provided even in the year

1993, he has not made any efforts to obtain the sale

deed. Plaintiff has not placed any material to show

that he is ready and willing to perform his part of

contract, he did not have sufficient funds to complete

the sale transaction. He has not deposited money in

the court even after filing the suit. The contract is

unenforceable. Plaintiff was fully aware that he

cannot enforce the contract. Out of 6 acres 1 gunta,

only southern portion measuring 3 acres was agreed

to be sold; the property was not measured and

demarcated, now it cannot be identified to perform

the contract.

4.2. After the agreement, the plaintiff never

approached the defendants for subscribing their

signatures to any of the applications or forms to

submit to the competent authorities.

4.3. Under the Income Tax Act, within 15 days

from the date of agreement, plaintiff ought to have

filed an application to the competent authority for

obtaining 'no objection' under Rule 37(1), but he has

not filed any application for clearance. The suit

property cannot be sold to him without 'no objection'

from the Income Tax authorities as sale price is

exceeding Rs.10,00,000/-. As per Clause No.4 of

the agreement, it is for the plaintiff to take all

necessary clearance at his cost, but he did not do

any act as he was not ready and willing to perform

his part of contract.

4.4. The plaintiff did not apply to the Urban

Land Ceiling Authority seeking exemption under

Section 20 of the Urban Land (Ceiling and

Regulation) Act, 1976 (for short 'the Act of 1976')

for grant of permission, the defendants cannot

alienate the land exceeding the limit and the

contract becomes unenforceable.

4.5. The plaintiff was required to form sites as

per Clause 6(a) of the agreement and not formed

any layout or sites and the question of defendants

co-operating for selling the sites to anybody does not

arise. The land was converted for the industrial

purpose. Change of use of land was also not

obtained by the plaintiff for forming the residential

layout, thereby the agreement is vitiated and the

plaintiff is not entitled for the relief of specific

performance.

4.6. As the defendants have rescinded the

contract and forfeited earnest money paid by the

plaintiff, there is no contract in existence at the time

of filing of suit and the suit has to fail.

5. Based on the above pleadings, Trial Court

framed the following issues and additional issues:

"1. Whether the plaintiff proves that he has been ever ready and willing to perform his part of contract?

2. Whether the plaintiff proves that he is entitled for the specific performance of the agreement of sale?

3. Whether the plaintiff proves that he is entitled for vacant possession of the suit property?

4. Whether the defendants prove that the suit is barred by limitation?

5. What decree or order?

ADDITIONAL ISSUES:

1. Whether the contract dated 3.1.1990 is hit by the provisions of Section.8 of the Indian Contract Act?

2. Whether the defendants prove that the contract has become infructuous and unenforceable for the reasons stated in paras 8 and 10 of the written statement?

3. Whether the defendants prove that they have rescinded the contract and forfeited the earnest money for the reasons stated in para No.23 of the written statement?"

6. Plaintiff examined himself as PW-1, marked

40 documents as per Exs.P1 to P40. The defendant

No.2 was examined as DW-1, marked 2 documents

as per Exs.D1 and D2. The Trial Court after hearing

both parties answered issue Nos.1 to 3 in the

affirmative, issue No.4 and additional issue Nos.1 to

3 in the negative and decreed the suit directing the

defendants to execute the sale deed within 60 days

from the date of the order after receiving the

balance sale consideration from the plaintiff.

7. Aggrieved by the same, defendant No.2 and

legal representatives of defendant No.1 have filed

R.F.A.No.1266/2018 whereas a 3rd party M/s.Fantasy

Builders and Engineers Pvt.Ltd., have filed

R.F.A.No.1271/2018.

8. During the pendency of the appeal,

defendant No.2 has died and his legal

representatives are brought on record.

9. Heard the arguments of Sri D.L.N.Rao,

learned Senior Counsel supported by Sri C.Srinivasa,

learned counsel for the third party appellant,

Sri.D.R.Ravishankar, learned Senior Counsel

supported by Sri.Ramu Sreekantaiah, learned

counsel for the plaintiff, Sri.S.K.V.Chalapathy,

learned Senior counsel supported by Sri.S.V.Srinivas

for defendant Nos.1(A) and (B) and 2 (A), (B) and

(C).

10. Sri.S.K.V.Chapapathy, learned Senior

Counsel contended that after execution of the

agreement, plaintiff did not perform his obligation as

contemplated under the several clauses of the

agreement. The plaintiff is required to pay balance

consideration of Rs.14.90 lakhs within four months

from the date of agreement. The land agreed to be

sold was an industrial land. Plaintiff wanted to form

a residential layout for which he was required to

obtain conversion to residential use, but he did not

obtain. The plaintiff admits his obligation to get the

land converted and to obtain the sale deed within

four months from the date of agreement. There is

no evidence before the Court to show that the

defendants have not co-operated with the plaintiff in

getting the land converted to residential layout. The

plaintiff has not applied for conversion. Plaintiff is

required to obtain 'no objection' from the Urban Land

Ceiling authorities under Section 28 of the Act for

registration of the suit property. Under Section

269UC of the Income Tax Act, the plaintiff is

required to submit to the Income Tax Authorities,

the draft sale deed seeking permission. Unless

permission is accorded by the Income Tax

Department, registration could not have been done.

The plaintiff is required to obtain approval under

Section 14(3) of the Karnataka Town and Country

Planning Act, 1961 for conversion of the land from

industrial purpose to residential purpose.

10.1. It is further contended that, there is no

obligation on the part of the defendants to perform

any part of contract except attesting forms and

applications. No such request was made by the

plaintiff to sign the documents. The plaintiff is

required to pay balance sale consideration of

Rs.14.90 lakhs. At no point of time, he has shown to

the defendants or offered any payment. The

availability of funds with the plaintiff is never

disclosed to the defendants. Plaintiff expressed his

inability to obtain permission from the concerned

authorities for want of funds. The defendants have

placed conclusive material to show non-availability of

the funds in the hands of the plaintiff after execution

of the agreement. Plaintiff has to prove his

continuous ready and willingness from the date of

agreement till the date of suit, even after filing of the

suit till today, the conduct of the plaintiff did not

demonstrate it.

10.2. The first notice was issued by the plaintiff

after completion of three years from the date of

agreement. By that time three years had lapsed and

the suit is barred by time. In the reply notice,

defendants offered to execute the sale deed within 8

days, but the plaintiff did not come forward.

10.3. The suit was dismissed for non-

prosecution on 04.02.2007. Plaintiff filed

miscellaneous petition seeking restoration of the

suit. By order dated 25.08.2010, suit was restored

after three years. The agreement was made on

03.01.1990, the suit was filed on 31.05.1993 and

the impugned judgment was passed on 07.06.2018

i.e., after 28 years of the agreement. The value of

the property has increased exponentially. Plaintiff by

paying only Rs.5 lakhs cannot enforce the

agreement. The Trial Court has erroneously decreed

the suit instead of dismissing for non-performance

on the part of the plaintiff and sought for

interference.

11. Shri D.L.N.Rao, learned Senior Counsel

contended that plaintiff after entering into an

agreement with the defendants did not perform his

part of contract. He was required to obtain several

permissions for conversion of industrial land for

residential purpose, form layout. He was also

required to identify the prospective buyers and get

the sale deed executed from the defendants in their

favour. Plaintiff was also required to obtain

permission from the Income Tax Authorities for

registration of the sale deed. Though the sale

consideration was Rs.19.8 lakhs, advance paid was

only Rs.5 lakhs on 03.01.1990 and the suit is filed

after period of limitation.

11.1. The third party is the agreement holder

from the defendants to purchase the suit property

and he has instituted the suit in O.S.No.26186/2007

for specific performance. The third party has also

filed I.A.No.12 in the instant suit to implead himself

as one of the parties. The said application was

rejected by the Trial Court by order dated

05.03.2014. It was challenged before this Court in

W.P.No.24132/2014. The plaintiff, defendant and

the third party are all parties to the said

proceedings. After hearing both sides, by order

dated 14.07.2014, this Court has directed

O.S.No.26186/2007 and O.S.No.3352/1993 shall be

transferred to CCH-8 with a direction that both the

suits shall be tried simultaneously and to dispose of

by common judgment. In utter violation of the order

of this Court, both the suits were not tried together

and common judgment is not passed.

11.2. In the impugned judgment, the order of

this Court in writ petition is not referred and the

third party is prevented from getting adjudication of

the claim for specific performance against the

defendants and he was prevented from assisting the

Court effectively for proper adjudication of the suit.

Behind the back of the third party, the suit has

proceeded with. The suit of the third party in

O.S.No.26186/2007 is still pending before the

Additional City Civil Court (CCH-8); unless both the

suits are heard together and common judgment is

passed by Single Judge, it will cause irreparable

damage to the third party.

11.3. The impugned order is without

application of mind, without following the directions

of this Court and liable to be set aside and the

parties have to be directed to go before the Civil

Judge for disposal of both suits together by common

judgment in order to meet the ends of justice.

12. Per contra, Sri.D.R.Ravishankar, learned

Senior Counsel has argued that the agreement

contemplates certain conditions against the

defendants for conclusion of transaction. The

reciprocal process of the ready and willingness

comes only after the income tax clearance. The

agreement is of the year 1990, the suit is filed in the

year 1993. The solvency of the plaintiff is not in

dispute till filing of the written statement.

12.1. Ex.P39 is the agreement. Under the

agreement, plaintiff has paid advance of Rs.5 lakhs

and agreed to pay the balance of sale consideration

at the time of execution of the sale deed.

Defendants are required to extend their assistance

for obtaining necessary permission from the

authorities, but they did not do so. Clauses (7) and

(8) of the agreement are with regard to the

liquidated damages. Clause (9) of the agreement

contemplates four months' time for performance of

the contract. Only in the written statement,

defendants have taken a contention that the contract

is against law. Under Section 54 of the Transfer of

Property Act, the readiness and willingness on the

part of the plaintiff could be canvassed only after

obtaining the income tax clearance under Section

230A of the Income Tax Act. Until then, defendants

cannot ask the plaintiff to show his ready and

willingness to perform his part contract.

12.2. On 23.07.1990, plaintiff called upon the

defendants to execute the documents for obtaining

clearance. They did not come forward to perform

their part of contract. As on 29.04.1993, the

agreement is alive and the plaintiff was always ready

and wiling to perform his part of contract.

12.3. Suppressing material facts, third party

has filed I.A.No.11 in O.S.No.26186/2007 for

clubbing of both suits and it came to be dismissed.

The said order has been confirmed in

W.P.No.24132/2014 (GM-CPC). The Trial Court has

decreed the suit. Consequently, the suit filed by the

third party in O.S.No.26186/2007 has to fail. The

third party is not a party in the instant suit. It has

no locus standi to question the impugned judgment.

The decree has been passed on merits after full-

fledged trial and sought for dismissal of the suit.

13. In reply to the said argument, Shri

D.L.N.Rao, has contended that the suit in

O.S.No.26186/2007 and the instant suits were

directed to be tried together and therefore, common

judgment was required to be passed. Suppressing

these facts, plaintiff, to deprive the right of the third

party proceeded with the instant suit.

14. Sri.S.K.V.Chalapathy has submitted that

the defendants have no objection if the matter is

remanded for disposal of both suits by a common

judgment.

15. We have given our anxious consideration to

the arguments addressed on behalf of both parties

and perused the records.

16. The points that arise for our consideration

are:

(i) Whether the judgment rendered by the Trial Court in the instant suit was in compliance of the order passed by this Court in W.P.No.24132/2014 (GM-CPC)?

(ii) Whether the impugned judgment calls for our interference?

Reg. Point No.(i):

17. The dispute is between two agreement

holders for purchase of the suit schedule property

from the defendants. Admittedly, plaintiff is the

holder of first agreement and the third party is the

holder of subsequent agreement. The recitals of the

agreement between third party and the defendants

contemplates an obligation on the part of the

defendants to execute the sale deed based on the

outcome of the instant suit.

18. Plaintiff has filed the instant suit for specific

performance against the defendants. Subsequently,

the third party also filed the suit in

O.S.No.26186/2007 against the defendants for

specific performance of their contract. Both the suits

were pending in different Court Halls at City Civil

Court.

19. The third party has filed I.A.No.11 in the

instant suit for clubbing of both the suits and

I.A.No.12 to implead himself as one of the

defendants in the instant suit. Both the applications

were dismissed. The third party preferred writ

petition before this Court in W.P.No.24132/2014. In

the writ petition, both plaintiff and the defendants

are parties represented by their respective counsels.

This Court after hearing both parties disposed of the

writ petition vide order dated 14.07.2014, which is

extracted herebelow:

"Heard learned counsel for the parties.

2. By this writ petition, the petitioner seeks to challenge the order dt. 5/3/2014 passed on I.A.No.12 in O.S.No.3352/93, whereby petitioner's prayer for impleading him as defendant in O.S.No.3352/93 has been rejected. It appears that the petitioner has also filed O.S.No.26186/07 and that is pending before the City Civil Judge, Mayo Hall, CCH-29, Bangalore. O.S.No.3352/93 is pending before City Civil Judge, CCH-8, Bangalore. Both the suits are for specific performance of agreements, purportedly executed by defendants in the suits, and they are in respect of same property. In the first suit (O.S.No.3352/93), this court is informed that cross-examination of defendants' witnesses is to commence, while in the second suit (O.S.No.26186/07), plaintiff's cross-examination is in progress. Keeping that in view and considering that both the suits are for specific performance of agreements in respect of the very same property and against the same owners, certain suggestions were made during the course of hearing of this writ petition to learned counsel appearing for the parties and they have agreed for the following order:

O.S.No.26186/07 is transferred to and directed to be tried by City Civil Judge, CCH-8, together with O.S.No.3352/93. It is made clear that though O.S.No.26186/07 is directed to be heard by City Civil judge, CCH-8, the suits are not clubbed, and the learned Judge shall proceed to

hear the suits either simultaneously, but separately, or one after another, as he thinks fit and proper. It is further made clear that if the learned Judge finds it proper and if possible, he may dispose of both the suits by common judgment.

With these observations, the petition is disposed of.

All contentions of the parties on merits of the case are kept open."

20. This Court has observed that the instant

suit filed by the plaintiff and also the suit filed by the

third party in O.S.No.26186/2007 are pending before

different Court Halls of City Civil Court i.e., CCH-29

(Mayohall Unit) and CCH-8 (City Civil Court Unit) and

parties have agreed for transfer of

O.S.No.26186/2007 to be transferred to CCH-8 and

directed to be tried together with the instant suit.

21. While directing so, this Court has made it

clear that both suits are not to be clubbed, the

learned Judge shall proceed to hear the suits either

simultaneously but separately or one after another,

as he thinks fit and proper. It is further made it

clear that if the learned Trial Judge finds it proper

and if possible, he may dispose of both the suits by

common judgment.

22. From the above, it is clear that in the writ

petition, learned counsel appearing for both plaintiff

and the defendants including the third party have

agreed for transfer of both suits and in compliance of

the order, both suits were transferred to CCH-8.

After transfer, the learned Trial Court has lost sight

of the above directions issued by this court.

23. We have carefully perused the impugned

judgment. We notice that there is no reference to

the direction issued by this Court in the writ

proceedings. Both parties have brought directions of

this Court to the notice of the learned Trial Judge.

24. We gather from the order of this Court in

the writ proceedings that since the relief sought for

in both the suits is specific performance in respect of

the same property against the same defendants,

with consensus of both parties, a direction was

issued to the learned Trial Judge to dispose of both

the suits together preferably by common judgment.

Unfortunately, same has not been followed, which

has driven the third party as well as the defendants

to file these appeals.

25. Insofar as granting or not granting the

relief of specific performance, there are several

contentious points raised by both parties which

require consideration by a same learned Judge and

require to render common judgment by giving

opportunity to parties to both suits.

26. Shri D.L.N.Rao, learned Senior Counsel is

right in his submission that the Trial Court has to

dispose of both suits in the light of the decision of

this Court in the writ proceedings, for which Shri

S.K.V.Chalapathy, learned Senior Counsel has no

objection. The impugned judgment is against the

letter and spirit of the order of this Court and it

cannot be sustained.

28. Both appeals merit consideration. In the

result, the following:

ORDER

(i) Both the appeals are allowed;

(ii) The impugned judgment and decree is set aside;

(iii) The matter is remitted back to the Trial Court (CCH-8) for disposal along with O.S.No.26186/2007;

(iv) The Trial Court is directed to dispose of both the suits in the light of the directions issued by this Court in W.P.No.24132/2014 with letter and spirit;