Telangana High Court
Mr.K.Laxma Reddy Died As Per Lrs vs Mr.K.Kuchela Rao on 25 January, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT JUSTICE P.SREE SUDHA
SECOND APPEAL NO. 181 OF 2004
JUDGMENT:
This Second Appeal is filed against the judgment of
the First Appellate Court in Appeal Suit No.140 of 1996
dated 13.12.2002 in O.S.No.620 of 1995 dated 17.09.1996
in which judgment of the trial Court was confirmed and
appeal was dismissed. Aggrieved by the said judgment, the
Legal Representatives of the K.Lakshma Reddy filed Second
Appeal.
2. In appeal it is mainly contended that the First
Appellate Court having found that the plaintiff has filed the
suit and appeal in person and without any legal assistance,
and therefore did not except polished legal language and
ought to have extended its hand in rendering justice in the
facts and circumstances of the case. It is also contended
that the First Appellate Court ought to have noted that it is
not a case that the appellant had been either negligent or
refused to carry out the amendment, but it was a case of
not understanding the niceties of the procedural wrangle
involved in conducting the case and therefore ought not to 2
have held against the appellant and therefore, the
appellant did not have an opportunity of knowing
procedural deficiencies in conducting the case and thus
requested the Court to take lenient view to set aside the
order of the First Appellate Court.
3. Heard learned counsel for the appellant and learned
counsel for the respondents.
4. The learned counsel for the appellants contended
that one K.Laxma Reddy filed suit for specific performance
of contract, based on the agreement of sale dated
22.01.1968 as such defendants in the suit filed an
application before the trial Court under Order 14, rule 2
r/w Section 151 of CPC with a prayer to decide the suit on
preliminary issue. The defendants in the suit are the
petitioners herein and plaintiffs as respondents.
Petitioners stated that respondent No.1 filed suit for
specific purpose basing on the agreement dated
22.01.1968 and also referred agreement dated 28.05.1972.
Thereafter, defendant Nos.2 to 5 were impleaded in the suit
vide order dated 21.12.1995 in I.A.No.2387/1995. They
purchased house property bearing No.12-12-1210/2, 5, 4 3
and 3 through registered sale deed and it is the case of the
petitioners that they are bonafide purchasers of the
property for valuable consideration without any notice
prior to agreement.
5. It is contended by the respondents that the
Defendant No.1 and subsequent defendants are both
colluded and they joined together their hands with each
other to deprive legal right and privileges of the plaintiff
and he was suffering from past 30 years. He further stated
that his schedule property is in survey No.149/8 but
petitioners are claiming Survey No.149/8/2/A.
6. It is stated by the petitioners that they have filed
O.S.No.1444/1981 dated 29.12.1981 in which decree has
no merits and no legal value and it has been cancelled by
U.L.C.A on 17.02.1983 in C.C.No.FS/158/76.
7. It is further stated by the respondents that suit is not
barred by limitation and respondent is in possession by
virtue of documents and in view of the orders passed by
the High Court, he filed O.S.No.56/95 and it was persisted. 4
He stated that he was suffering from mischief and fraud
and requested to dismiss the application.
8. With regard to limitation, admittedly this suit is filed
against Defendant No.1/Dr.C.K.Govind Rao for specific
performance basing on agreement dated 22.01.1968. The
perusal of the cause of action in the plaint shows that the
plaintiff rested the claim on the cause of action on the date
of refusal of notice sent on 18.10.1992 and on 14.06.1993.
Plaintiff is enjoying the suit property, the possession is
already delivered by the date of agreement was not effected
in the cause of action. So also G.P.A. A.Krishnaiah had
entered into another agreement on 20.05.1972, wherein
undertaken to register the suit property in fvavour of
plaintiff and received Rs.2,000/- as balance of sale
consideration. This was also not made cause of action. In
the written statement Defendant No.1 contended that the
agreement dated 22.01.1968 is not acted upon. Plaintiff
filed suit under in forma Pauperis and thus he is not having
capacity to pay the balance.
9. So far as second agreement dated 20.05.1972 is
concerned he contended that it is a forgery. He also stated 5
that he has not received any amount to a tune of
Rs.34,000/-. In view of O.S.No.219 of 1976 which was
confirmed in the Appeal Suit No.398 of 1980 dated
08.07.1981 and it was suppressed by plaintiffs in the
present suit. It is contended that from out of the total
extent of land about 2,000 square yards was taken away by
road widening programme and rest of the land was sold to
different parties on different dates and they are in
occupation of the same after constructing houses and
compound walls as well as he also denied the possession of
plaintiff. There was a suit between tenant and agreement
holder in O.S.No.1444 of 1981 which was compromised on
21.12.1981 and in pursuant to the compromise decree of
partition was affected and respective shares are allotted
under registered partition deed, from 19.11.1993 onwards
the respective parties are in possession of the properties.
10. It was further contended by respondent No.1 that by
virtue of W.P.No.11960 of 1994 a stay was granted with
regard to the U.L.C and it is pending for disposal. As per
the agreement Rs.26,000/- and Rs.3,000/- was paid on
14.12.1967 by the plaintiff and it was mentioned as 6
Ac.1.36 guntas forming part of S.No.149/8. It is
mentioned that the possession was delivered by virtue of
this document. A condition is stipulated that the vendor
shall satisfy the purchase as to the title and he shall take
necessary steps by way of revenue permission etc.,
whatever necessary on payment of balance of sale
consideration by the end of October, 1968. But this was
not stated in the plaint and more particularly in the cause
of action. It was stated that second agreement was entered
on 20.05.1972 and received Rs.5,000/- towards balance of
sale consideration. He spent several amounts for
appointment of watchmen to safeguard the possession and
thus the payments are not tallying with that of calculation.
Initially suit was returned for compliance after impleading
necessary parties. This was returned on 12.02.1996 as the
amendment is not carried out as well as necessary
consequential amendments also not carried out by the
plaintiff. Further, the plaintiff herein had represented to
the court who is appearing in person that he wanted to
take chanced and he wanted to go head with the trial even
without making necessary amendments in the plaint i.e., 7
I.A.No.306 of 1996 was allowed and the plaint was fair
copy amendment plaint is filed by simply mentioning the
names of newly added parties. Consequential amendments
are not carried out against D.2 to D.5. Entire plaint does
not disclose the cause of action and it is liable to be
rejected.
11. Moreover, suit is ought to have filed within three
years from the date of agreement dated 22.01.1960 and it
was specifically mentioned in the agreement that the
transaction is to be completed by October, 1968. But
again another agreement was entered on 20.05.1972 till
the time of issuance of legal notice dated 18.10.1991. The
plaintiff had not taken any steps but has given another
notice on 14.06.1993. In the written statement of
Defendant No.1 it was stated that the plaintiff had filed
suit earlier in O.S.No.219 of 1976 which is carried in
appeal and on 08.03.1981 where A.S.No.398 of 1980 was
disposed off and the said suit will operate as cause of
action against the plaintiff as on the date of filing of the
suit. The plaintiff did not state the said facts in plaint in
order to project, the suit is filed within limitation. 8
However, this suit is barred by limitation. It was also
observed that suit is filed for specific performance of
contract which is comprehensive in nature. Defendant
Nos.2 to 5 has no independent footing that of Defendant
No.1 when decree was passed against Defendant No.1
binding on Defendant Nos.2 to 5. Accordingly, the trial
Court decided issue No.1 barred by the limitation and
plaint is rejected under Order-7, Rule-11 (a) as the cause of
action is not properly disclosed in the plaint. Aggrieved by
the said order the plaintiff in the suit preferred this appeal.
12. The trial Court regarding the issue of the limitation
held that it is a mixed question of law and the trial Court
ought not to have decided the said issue as a preliminary
issue. So also regarding the second issue, it was held that
in spite of specific direction given by the Court to carryout
the amendment to bring Defendant Nos.2 to 5 on record as
subsequent purchasers is to be rejected. The appeal is
only against the Defendant No.1 but not against the
Defendant Nos.2 to 5. The First Appellate Court also
observed that the plaintiff in the suit filed suit as a party in
person and he contended the matter without any legal 9
assistance as such the mistakes occurred in paragraph
relating to cause of action. And thus it is not proper on the
part of the trial Court to observe that there is no proper
cause of action. The legal representatives of the plaintiff in
the suit preferred this Second Appeal and mainly
contended as rightly pointed out by the First Appellate
Court, the plaintiff is party in person and he contested that
the suit and appeal as such the First Appellate Court ought
to have take the lenient view in allowing the appeal as he
has not carried out the amendment and he do not know
about the procedural wrangle involved in the case.
13. Admittedly, the plaintiff filed suit for specific
performance basing on the agreement of sale in the year
1968 and in the year 1995 he stated that supplementary
execution of sale was executed in continuation of purchase
agreement on 20.05.1972. Even then it was not within the
limitation and thus the trial Court rightly held that suit
filed for specific purpose is barred by limitation. No doubt
issue regarding the limitation is a mixed question of fact
and law the trial Court discussed the facts at length while
arriving at the conclusion. The First Appellate Court 10
contended the Defendant Nos.2 to 5 were exhibited as per
the orders in I.A. but the amendment was not carried out
regarding subsequent purchasers i.e., Defendant Nos.2 to
5 in spite of several reminders by the trial Court and also
granting more than sufficient opportunity, wilfully he did
not carry out the amendment. In fact, perusal of the order
of the trial Court shows that he himself gave an
undertaking before the trial Court. He intended to proceed
with the suit by taking a chance even without carrying out
the amendments as such the trial Court clearly held that
Defendant Nos.2 to 5 has to claim the right only through
Defendant No.1 as the consequential amendments were not
carried out by the plaintiff properly, the suit is to be
rejected under Order-7, Rule-11 (a) and it was specifically
observed that the cause of action does not disclosed
properly.
14. Several facts were suppressed by the plaintiff to show
that the suit was within the limitation. No doubt, suit was
filed 'informa pauparis' and plaintiff contested the matter
as a party in person without engaging the counsel and
once he approached the Court he should follow the 11
procedure laid down for conducting the trial before the
Courts either he should have asked for legal aid or should
have engaged a counsel in this case. Though, the Court
instructed him to carryout the amendments for several
times even then he could not do it and it clearly amounts
to negligence on his part. Second Appeal is tobe preferred
only against the question of law. In this case there is no
question of law. Both the preliminary issues regarding the
limitation and rejection of suit for no proper cause of action
were decided by the trial Court at length. Therefore, this
Court finds that there are no merits in the case and
accordingly the appeal is liable to be dismissed.
15. In the result, the Second Appeal is dismissed
considering the concurrent findings of both the Courts. No
order as to costs.
Pending miscellaneous applications, if any, shall
stand closed.
____________________ P.SREE SUDHA, J Date:25.01.2024 Bw
