Faculty Pradhan (Since Dead) vs Sk. Salim (Since Dead) Through
2021 Latest Caselaw 11835 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                        RSA No.133 of 2012
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 03.12.2011 and
13.12.2011 respectively passed by the learned Additional District Judge
(FTC-1), Cuttack in RFA No.09 of 2006 confirming the judgment and
decree dated 17.12.2005 and 23.12.2005 respectively passed by the
learned Civil Judge, Junior Division, 1st Court, Cuttack, in Title Suit
No.9 of 2000.

     Faculty Pradhan (Since Dead)          ....          Appellants
     through his LRs
                             -versus-

     Sk. Salim (Since Dead) through      ....      Respondents

his LRs Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

      For Appellants     -     M/s.A. Pal. A.Das and
                               S.K. Rout
      For Respondents -        M/s.P.K. Lenka and
                               P. Lenka
                               For R.1(a) to R.1(d)
CORAM:
MR. JUSTICE D.DASH
           Date of Hearing & Judgment : 17.11.2021
D. Dash, J

1. The original Appellant, namely, Faculty Pradhan (since dead) by

filing this Appeal under Section 100 Civil Procedure Code (for short,

'the Code'), has assailed the judgment and decree dated 03.12.2011 and

13.12.2011 respectively passed by the learned Additional District Judge

(FTC-1), Cuttack in RFA No.09 of 2006. The sole Appellant having

died during pendency of this Appeal, his legal representatives having

// 2 //

been substituted are now pursuing the Appeal. It may also be stated

here that the original Respondent No.1-Plaintiff being dead, his legal

representatives have come on record as Respondent Nos.1(a) to 1(d)

and they substantially represent the interest of the Respondent Nos.1-

Plaintiff.

By the said judgment and decree, while dismissing the First

Appeal filed by the original Appellant-Defendant No.1 under Section

96 of the Code, the First Appellate Court has confirmed the judgment

and decree dated 17.12.2005 and 23.12.2005 respectively passed by the

learned Civil Judge, Junior Division, 1st Court, Cuttack, in Title Suit

No.9 of 2000.

2. The original Respondent No.1 in this Appeal had filed the suit as

Plaintiff arraigning the original Appellant as Defendant No.1 and the

Respondent No.2 as the Defendant No.2 in seeking permanent

injunction against this Appellant (Defendant No.1) in restraining him

from transferring or mortgaging the suit land measuring Ac.0.032

decimals of land out of plot no.33 having an area of Ac.0.121 decimals

under khata no.153 of village Sutahat in the Cuttack Town vide holding

no.347 till finalization of the litigation pending in the court of law,

further seeking a direction to the original Appellant-Defendant No.1 to

alienate the suit land to the original Respondent No.1-Plaintiff.

// 3 //

3. The Trial Court has decreed the suit and thereby the original

Appellant (Defendant No.1) had been permanently restrained from

transferring or mortgaging the suit property to any person in violation

of the agreement dated 19.12.1979 (Ext.1) executed by him in favour of

original Respondent No.1 (Plaintiff) till finalization of the litigation

pending in the Court in respect of the suit property.

4. The original Appellant (Defendant No.1), being aggrieved by the

said judgment and decree, having carried the First Appeal, has failed in

his attempt. That is how the present Second Appeal has come to be

filed.

5. For the sake of convenience, in order to avoid confusion and

bring in clarity, the parties hereinafter have been referred to, as they

have been arraigned in the Suit.

6. The Plaintiffs' case, in short, is that on 19.12.1979, an agreement

had been entered into between the Defendant No.1 and the Plaintiff. By

the said agreement, the Defendant No.1 had agreed to sell the suit land

to the Defendant No.1 for a consideration of Rs.13,000/- with the

stipulation that the Plaintiff would pay the expenses in the litigation as

would be so met and in the event, the Defendant No.1 wins the

litigation in getting the ownership over the suit land, he would sell the

suit land to the Plaintiff on receipt of the balance consideration, i.e.,

// 4 //

Rs.13,00/- minus Rs.4000/- already paid as advance consideration and

the litigation expenses. The Defendant No.1 had filed T.S. No.56 of

1975 against his landlord claiming the right, title and interest over the

suit land and that litigation was continuing at the time of execution of

said agreement. As per the agreement, the Plaintiff was to finance the

Defendant No.1 for the said litigation and only in the event of success

of Defendant No.1, he was required to execute the sale deed in respect

of the suit land in favour of the Plaintiff, who would then make the

payment of the rest of the consideration amount as agreed upon.

It is stated that after the agreement came into being, the

Defendant No.1 was non-suited in the suit i.e. T.S. No.56 of 1975

which had been initiated at his instance. So, he carried the First Appeal

numbered as F.A. No.191 of 1980 to this Court. The said Appeal being

allowed, the Defendant No.1 got a decree in his favour and as such his

title and possession stood declared. However, his landlord, who was the

Defendant in that suit and Respondent in the First Appeal filed by this

Defendant No.1, carried one Letter's Patent Appeal, i.e., A.H.O. No.6

of 1997, which was then at the time of the institution of this present suit

was pending before this Court.

The Plaintiff then came to know that Defendant No.1 was going

to put up construction over the suit land with a view to raise the

// 5 //

valuation. So, he raised protest and then it was detected that Defendant

No.1 was contacting other persons including the Defendant No.2 to sell

the suit land at a higher price ignoring the said agreement for sale of the

said land with the Plaintiff. Projecting the above as the cause of action,

the Suit has been filed claiming the following reliefs:-

"a) a decree for permanent injunction be passed against the defendant no.1 restraining him not to transfer or mortgage the suit property to any person except the plaintiff; and

b) a decree for mandatory injunction be passed directing the defendant no.1 to only alienate the suit property in favour of the plaintiff after completion of the entire litigation pending in the court in respect of the suit property."

7. The Defendant No.1, entering appearance in the suit filed the

written statement. The question of maintainability of the suit and lack

of cause of action have been raised for dismissal of the suit. While

traversing the plaint averments, the Defendant No.1 has admitted that

on 19.12.1979, he had entered into a registered agreement with the

Plaintiff as he was in need of financial assistance to prosecute the civil

litigation with his landlord and for that there was an understanding with

the Plaintiff to sell the suit land for a consideration of Rs.13,000/- and

towards that, he had received advance consideration of Rs.4000/-. It

was further agreed between them that the Plaintiff would bear all the

cost of said litigation till its finalization. It is said that the Plaintiff

// 6 //

failed to finance the Defendant No.1 as agreed upon inspite of repeated

request and thereby violated the terms and conditions of the agreement.

For that reason of the failure of the Plaintiff to perform his part of the

agreement, the Defendant No.1, through his counsel, served a notice

upon the Plaintiff cancelling/revoking the said agreement and calling

upon the Plaintiff to receive back the advance consideration of

Rs.4000/- form him. The Plaintiff, on receipt of the notice, gave the

reply in demanding a sum of Rs.6500/- for cancellation of said

agreement which was duly received by the Defendant No.1's counsel.

The Plaintiff in reply further stated that as because the Plaintiff inspite

of verbal demand of refund of the amount, the Defendant No.1 failed to

pay, there was delay in sending the reply through the counsel. In that

reply, the Plaintiff also intimated that if the amount, as demanded,

would not be paid, he would file the suit for recovery of said amount

from the Defendant No.1. In view of all such exchange of

communication, it is stated that the agreement entered into between the

parties on 19.12.1997 stood cancelled and lost all its force. The facts

stated by the Plaintiff that the Defendant No.1 has been negotiating to

sell the suit land to others including the Defendant No.2 has been

denied.

// 7 //

8. On the above rival pleadings, the Trial Court has framed as many

as eight issues.

On going through the evidence, the answer to the Issue No.4

concerning termination/revocation of the agreement, has been returned

in saying that the registered agreement dated 19.12.1979 under Ext.1 is

still subsisting. Next taking up the issue relating to the cause of action

to file the suit and as to whether it is bad for non-joinder of necessary

parties, the Trial Court has also answered those in favour of the

Plaintiff in maintaining the suit as framed and for the reliefs claimed.

Proceeding to answer issue nos.6 and 7 as to the maintainability of the

suit in the form it has been laid and for the reliefs sought for, upon

analysis of the evidence, those have also been answered in favour of the

Plaintiff.

9. Accordingly, the Trial Court has decreed the suit by issuing

permanent injunction against the Defendant No.1 in restraining him to

transfer or mortgage the suit property to any person violating the

agreement (Ext.1) till finalization of the entire litigation pending in any

Court in respect of the suit property.

10. The First Appellate Court being moved by the aggrieved

Defendant No.1 has repelled all the contentions raised from the side of

// 8 //

the Defendant No.1 in seeking the annulment of the judgment and

decree passed by the Trial Court. Hence, this Appeal

11. Followings are the substantial questions of law, framed for being answered in this Appeal:-

"1) Whether Ext.D, advocate's reply amounts to acknowledgement of revocation of Ext.1, agreement for sale?; and

2) Whether the judgment and decree of the lower appellate court is vitiated due to non-consideration of judgment of this Court in AHO No.6 of 1997?'

12. Mr.Avijit Pal, learned counsel for the present Appellants, who

are the legal representatives of the original Appellant-Defendant No.1

at the outset, submits that for the developments, which have been taken

place in respect of the litigation running between the Defendant No.1

and his landlord and in view of the fact that the result of the same have

attained finality and have been holding the field for more than a decade,

at this stage, the substantial questions of law formulated while

admitting this Appeal do not survive any more for being answered. He

further submits that since the litigation between the Defendant No.1 and

his landlord has ultimately been set at rest by the order passed by this

court way back on 08.12.2008 in AHO No.6 of 1997 arising out of

RFA No.191 of 1980 and T.S. No.56 of 1975 and as the Plaintiff has

not filed any suit for specific performance of contract at any time

thereafter and even as on date, in this suit at the instance of the

// 9 //

Plaintiff, the decree for permanent injunction restraining the Defendant

No.1, now his legal representatives from alienating the property in any

manner and to deal with the same as they like does no more survive and

cannot be sustained and thus the decree so passed by the Courts below

is to be held to have spent all its life and force which can no more stand

to operate.

According to him, these above grounds are enough now to hold

that the Plaintiff is no more entitled to the relief of permanent

injunction as have been granted and the decrees impugned in this

Appeal are to be annulled.

13. Mr. P.K.Lenka, learned counsel for the Respondent No.1(a) to

1(d), who are the legal representatives of the original Respondent No.1-

Plaintiff submits that the Courts below have concurrently found the

agreement for sale (Ext.1) as valid and in fact the Defendant No.1 does

not deny to have duly executed the same out of his will and volition. He

further submits that the Courts below have also concurrently found that

the revocation of the registered agreement (Ext.1) as claimed by the

Defendant No.1 is not sustainable in the eye of law. Under the

circumstance, he contends that when the Plaintiff's right under the

agreement to purchase the suit land from the Defendant No.1 subsists,

the Courts below did commit no error in passing the decree of

// 10 //

permanent injunction restraining the Defendant No.1 from alienating

the suit land in any manner in favour of any person has to stand and the

culmination of the litigation between the Defendant No.1 and his

landlord as well as non-filing of the suit for specific performance of

contract cannot go to nullify the decree under challenge in this Appeal

in saying that the same can no more sustain to hold the field. He next

submits that the Plaintiff or his legal representatives being not aware of

the final result of the litigation between the Defendant No.1 and his

landlord could not have filed the suit for specific performance of

contract and the cause of action for the same would arise from now

onwards. He thus submits that the Plaintiff and his legal representatives

having taken no step in that light is of no fatal consequence and that

cannot be taken as to ground to set aside the judgments and decrees

passed by the Courts below.

14. In order to address the above rival submission, at the cost of

repetition, it may be stated that the suit filed by the Plaintiff is based on

an agreement for sale (Ext.1) and it is dated 19.12.1979. Admittedly,

from the time of the institution of the suit till its conclusion, the suit

land was the subject matter of the litigation running between the

Defendant No.1 and his landlord. It was then pending before this Court

in a Letters Patent Appeal filed by the landlord of the Defendant No.1.

// 11 //

The Defendant No.1 being successful in establishing his right, title,

interest and possession over the suit land in the First Appeal, the same

had been called in question by his landlord in the said Letters Patent

Appeal numbered as AHO No.6 of 1997. The present suit having been

decreed in favour of the Plaintiff by the judgment dated 17.12.2005

followed by the decree, the Defendant No.1 carried the First Appeal

which came to be disposed of by the First Appellate Court by its

judgment dated 3.12.2011 followed by the decree. Admittedly, the First

Appeal came to be disposed of by the First Appellate Court, the Letters

Patent Appeal was no more on the Board and it had been disposed of

three years before prior to the disposal of the First Appeal. In the

Memorandum of the present Second Appeal carried by the Defendant

No.1 in challenging the judgment and decree passed in the First

Appeal, i.e., RFA No.09 of 2006, the factum of disposal of the AHO

No.6 of 1997 and its result has been clearly stated and the copy of the

same was received by the Plaintiff from the beginning.

15. With these above obtained facts, the clear picture emerges that

the litigation between the Defendant No.1 and his landlord has ended

since long and long 12 years have elapsed since then. The original

Plaintiff has not filed any suit for specific performance of contract in

pressing the agreement for sale (Ext.1) standing in his favour and held

// 12 //

by him as the triumph card as against the Defendant No.1 seeking a

direction from the court of law to the Defendant No.1 to execute the

sale-deed on receipt of balance consideration in fulfilling his part of the

agreement, saying that the Plaintiff was all along ready and willing to

perform his part under the agreement. By virtue of finalization of the

litigation between the Defendant No.1 and his landlord; the Defendant

No.1 stood recognized as the owner of the suit land having all the right,

title, interest and possession over the suit land. Admittedly, the Plaintiff

was never in the possession of the suit property which all along rested

with the Defendant No.1 and thus it is with his legal representatives

who have been substituted in his place and they are residing in the

house standing thereon. Despite the execution of the agreement for sale

under Ext.1, the possession of the suit land as it reveals from the

contents of Ext.1 was remaining with the Defendant No.1 and the

Defendant No.1 had not parted with possession even in respect of any

part in favour of the Plaintiff. In the given facts and circumstances,

when the Plaintiff has not filed the suit for specific performance of

contract in pressing Ext.1 into service against the Defendant No.1 at

any point of time during his lifetime and as till now his legal

representative/s have also not done so; this Court is of the considered

view that the decree for permanent injunction as has been passed by the

// 13 //

Courts below even if for a moment is said to have then been rightly

passed, has to be held to have spent its life and all the force so as to

operate in the field as against the legal representatives of the original

Defendant No.1, i.e., these Appellant No.1(A) to 1(E). The submission

of the learned counsel for the Respondent No.1(a) to 1(d), who are the

legal representatives of the original Plaintiff that the factum of

finalization of the litigation between the Defendant No.1 and his

landlord being not within the knowledge of the Plaintiff and his legal

representatives, the cause of action for the suit for specific performance

of the agreement had not arisen earlier and it starts to run from now

onwards, in the facts and circumstances as narrated cannot be

countenanced with. The very contents of Ext.1 are clear that the

Defendant No.1 would be executing the sale-deed on being successful

in the litigation and therefore, the agreement Ext.1 remaining dormant

from being effective, very much sprang into full action obligating the

Defendant No.1 to execute the sale-deed from that time of culmination

of the litigation with his landlord and the result thereof coming in his

favour and since then the time had arisen for the proposed vendee to

press the same into service in fulfilling its purpose and objective as set

forth therein. In case of inaction of the Defendant No.1, it was for the

Plaintiff to keep watch over the progress of said litigation and its result

// 14 //

in compelling the Defendant No.1 to perform the final act as obligated

under the said agreement, Ext.1. Here even without going to judge all

the previous conduct/ action / inaction of the parties, the inaction of the

Plaintiff after culmination of the litigation between during his lifetime

and thereafter the inaction of his legal representatives (Respondent

No.1(a) to 1(d)), when viewed are more than enough to hold that they

for all these years have not been in readiness and willing to further

drive the agreement to its destination as agreed upon so as to see that it

reaches its logical end. No suit for specific performance of contract

being filed for all these twelve years, the said remedy now also stands

wholly time barred and no more can be sought for.

In that view of the matter, this Court no more finds the necessity

for answering the substantial questions of law as formulated at the time

of admission as the result of exercise would merely academic serving

no such purpose in this lis running between the parties.

In the wake of aforesaid, the judgments and decrees passed by the Courts below are hereby set aside and consequently, the suit as laid and for the reliefs claimed is hereby dismissed.

16. Resultantly, the Appeal is allowed. No order as to costs. Consequently, all the interim orders passed in this Appeal would no more be holding the field and accordingly, stand vacated.

(D. Dash), Judge.

Basu