Telangana High Court
K.V. Joy vs Sunil Bhandari on 31 March, 2023
Bench: T.Vinod Kumar, P.Sree Sudha
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
2
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
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
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.
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
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
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,
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
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
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
