Telangana High Court
Nacharam Anjaiah vs N. Muralidhar Rao on 2 September, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
APPEAL SUIT No.54 of 2021 & C.M.A.No.507 of 2023
COMMON JUDGMENT:
This appeal is filed by the appellants - defendants aggrieved by the
judgment and decree dated 03.10.2017 passed in O.S.No.246 of 2006 on
the file of the XVI Additional District & Sessions Judge - cum - XVI
Additional Metropolitan Sessions Judge, Rangareddy District at
Malkajgiri.
2. The respondent is the plaintiff.
3. The plaintiff filed O.S.No.246 of 2006 submitting that defendant
No.1 approached him with a proposal to sell his agricultural land for his
family necessities to an extent of Ac.1-27 guntas in Survey No.92
situated at Godumakunta Village, Keesara Mandal, Rangareddy District
for a total sale consideration of Rs.13,56,750/-. The plaintiff agreed and
paid a sum of Rs.25,000/- as a token advance on 18.09.2005 and paid
Rs.3.00 lakhs on 06.10.2005 and got executed an agreement of sale on the
said date. A receipt was passed by the defendant. As per the terms of the
agreement, the transaction has to be completed within six (06) months by
paying the balance amount of Rs.10,31,750/-. The plaintiff on
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23.01.2006 approached the defendant and expressed his readiness and
willingness to get the sale deed registered in his favor by paying the
balance sale consideration. The defendant though entered into the
agreement of sale and agreed to execute and register the sale deed, he
never turned up nor gave any specific date for the execution of the
document. As such, the plaintiff was forced to issue a legal notice on
29.01.2006 expressing his readiness and willingness to get the sale deed
executed by paying the balance sale consideration. But there was no
response from the defendant. The plaintiff infact entered into an
agreement of sale with two other brothers of the defendant by name
Yadagiri and Balaiah under separate agreements. They were having
pattas in their names in respect of suit schedule survey No.92 to an extent
of Ac.1-27 guntas each and the defendant was having Ac.1-28 guntas in
Survey No.92 in the passbook. The plaintiff approached all the
executants as they were residing in the same village and in side-by-side
houses. All the brothers even though agreed to execute and register the
sale deed, but not gave any specific time. After entering into agreement
of sale, the plaintiff called for objections from the public intimating about
entering into agreement to purchase the suit schedule property from three
persons. The same was published in Eenadu and Vaartha Newspapers on
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20.01.2006. A reply to the publication was received through advocate
representing Nacharam Naveen, N.Bhavani, N.Swetha and N.Sandeep. It
was mentioned that 3 and 4 therein were minors represented by N.Padma,
their mother. But the father's name of the said persons was not disclosed,
for which a letter was addressed by the learned counsel for the plaintiff
asking for particulars about the objectors. But the notice sent through
Registered Post Acknowledgement Due was returned as unclaimed. As
such, the plaintiff filed the suit for specific performance of agreement.
4. A written statement was filed by the defendant denying the petition
averments. The defendant contended that he never agreed to sell the
property in favor of the plaintiff and had not executed any agreement of
sale nor received any amount or legal notice. He was not aware of
issuing public notice by the plaintiff calling for objections from third
parties. The cause of action was created only for the purpose of
instituting the suit.
4.1. The defendant further submitted that his daughter by name Bhavani
filed partition suit in respect of the suit property and some other
properties before the I Additional Senior Civil Judge vide O.S.No.124 of
2006 stating that the suit property and other properties were ancestral
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properties. As per the revenue records, the properties were acquired by
the defendant through his forefathers. Basing on the revenue records, the
defendant's daughter filed a partition suit and obtained a decree in their
favor. The defendant was no more the owner of the suit property. The
suit property was already allotted to other parties in O.S.No.124 of 2006
on the file of the I Additional Senior Civil Judge and prayed to dismiss
the suit.
5. The plaintiff filed an amendment to the plaint by adding para 7(a)
contending that he came to know about the collusive suit between the
defendants by way of written statement filed by defendant No.7 for the
first time, wherein it was revealed that a collusive decree was obtained in
O.S.No.124 of 2006 on the file of the II Additional Senior Civil Judge,
Rangareddy District at L.B.Nagar through the Bench of Lok Adalat,
Rangareddy District. The said suit was instituted on 27.01.2006, for
which the defendant No.1 had filed his written statement on 20.03.2006
without revealing his entering into contract with the plaintiff in respect of
the suit schedule property. The matter was referred to Lok Adalat on
17.07.2006 and a compromise decree was said to have been passed by the
Lok Adalat on 17.07.2006 itself. Thereafter, a written statement was
filed before the Court. The said suit was defended on behalf of the
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defendants 3 to 5 therein being minors represented by their mother. The
procedure contemplated under Order XXXII of the Code of Civil
Procedure was not followed. The said compromise was a nullity and
nonest in the eyes of law. In terms of compromise and as per the final
decree, the suit schedule property was avoided to be allotted to defendant
No.1, who had entered into agreement of sale with the plaintiff and the
said alleged fraudulent compromise was only to deprive the plaintiff of
his legitimate right over the property. The intention of the parties was
crystal clear that the said suit was filed only with an intention to defeat
and defraud the interest of the plaintiff over the suit schedule property
and prayed to declare the decree in O.S.No.124 of 2006 as collusive and
not binding on the plaintiff and to direct the defendants 1 to 3 to execute
and register the sale deed in respect of the suit schedule property.
6. Basing on the said pleadings, the following issues were settled for
trial:
i) Whether the plaintiff is entitled for specific performance of suit
agreement of sale dated 06.10.2005?
ii) Whether the decree in O.S.No.124 of 2006 on the file of the II
Additional Senior Civil Judge, Rangareddy District is not binding
on the plaintiff?
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iii) To what relief?
7. The plaintiff examined himself as PW.1 and got marked Exs.A1 to
A12. The trial court recorded that the defendants remained ex-parte and
without even referring to the written statement filed by them decreed the
suit with costs directing the defendants to execute the registered sale deed
in favor of the plaintiff in respect of suit property by receiving balance
sale consideration amount of Rs.10,31,750/- within a period of three (03)
months and to deliver vacant possession of the suit property to the
plaintiff, failing which the plaintiff was entitled to obtain the registered
sale deed and delivery of vacant possession of the suit property through
Court. The trial court further declared that the decree in O.S.No.124 of
2006 on the file of the II Additional Senior Civil Judge, Rangareddy
District at L.B.Nagar as not binding on the plaintiff.
8. Aggrieved by the said judgment and decree passed by the trial
court, the defendants preferred this appeal.
9. Heard Sri Ram Mohan Palanki, learned counsel for the appellants -
defendants and the learned Senior Counsel Sri Vedula Srinivas
representing Miss.Vedula Chitralekha, learned counsel for the respondent
- plaintiff on record.
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10. Learned counsel for the appellants submitted that the suit was
initially filed against defendant No.1 - appellant No.1. Later, the other
appellants 2 to 5 and another were added as parties as per the orders in
I.A.No.236 of 2011 in O.S.No.246 of 2006 dated 03.01.2012. The
appellants filed a petition under Order IX Rule 13 of CPC before the
Court to set aside the ex-parte decree. The appellants came to know that
the suit O.S.No.246 of 2006 was decreed on 03.10.2017 after receiving
summons in Execution Petition No.22 of 2018 on 18.07.2019. Summons
through Registered Post were served on 30.07.2019. The Execution
Court directed the appellants - defendants to appear before the court
below on 31.07.2019. Learned counsel for the appellants - defendants in
the court below had not informed about the stage of proceedings even
though the appellants were pursuing the matter with their counsel from
time to time. The court below had not considered the averments in the
written statement and judgment and decree passed in O.S.No.124 of 2006
on the file of the I Additional Senior Civil Judge dated 17.07.2006.
When the appellant No.1 - defendant No.1 was denying the execution of
the document without verifying its validity, simply decreeing the suit was
erroneous and against the principles of natural justice. The appellant
No.1 - defendant No.1 was not having absolute right over the property.
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The other suits filed by the respondent were partly decreed and the
respondent preferred appeals against them and the same were pending
and prayed to allow the appeal by setting aside the ex-parte decree passed
by the trial court.
11. Learned counsel for the appellants relied upon the judgments of the
Hon'ble Apex Court in Shyamal Kanti Danda v. Chunilal Choudhary1,
Prem Jeevan v. K.S.Venkata Raman 2, Ravi Setia v. Madan Lal and
Others 3, Prem Kishore and Others v. Brahm Prakash and others 4and
of the judgment of the High Court of Andhra Pradesh in Mekala Rama
Subbaiah v. Potula Yesepu and Others 5and a single Bench Judgment
of the High Court of Andhra Pradesh in Mandadi Srinivasa Rao v.
Shaik Mehrunnisa 6.
12. Learned Senior Counsel for the respondent - plaintiff on the other
hand contended that the appellants had to satisfy that the lower court
erred in setting them ex-parte. The petition filed by the appellants -
defendants under Order IX Rule 13 of CPC was also dismissed for default.
AIR 1984 SC 1732
(2017) 11 SCC 57
2019 (9) SCC 381
2023 Lawsuit SC 322
2008 (5) ALT 165
2013 (3) ALT 217
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As per Order XV Rule 1 of CPC, if parties were not at dispute, judgment
could be passed. The appellants were throwing the blame on their
counsel that they were not informed about the stage of the proceedings.
But a duty would cast upon the appellants to pursue the matter diligently
before the Court along with their counsel from time to time. No
explanation was given by the appellants - defendants as to why they were
not present and not cross-examined PW.1 and relied upon the judgments
of the Hon'ble Apex Court in Bhanu Kumar Jain v. Archana Kumar
and Another7 and in Surinder Pal Soni v. Sohan Lal (Dead) through
LRs. 8.
13. Now the point for consideration is whether the trial court
committed an error in passing the judgment and decree in O.S.No.246 of
2006 dated 03.10.2017 by setting the defendants ex-parte.
14. As seen from the record, the suit is pertaining to the year 2006.
Written statement was filed by the defendant No.1 on 22.01.2007. The
evidence affidavit of the plaintiff was filed as PW.1 on 16.04.2007.
Certain documents were marked as Exs.A1 to A7 on 01.12.2014.
Meanwhile, the defendants 2 to 6 were added as parties to the suit as per
(2005) 1 SCC 787
(2020) 15 SCC 771
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orders in I.A.No.236 of 2011 dated 03.01.2012. The daughters of
defendant No.1 were added as defendants 2 and 3 and the sons of
defendant No.1 were added as defendants 4 to 6. Defendants 4 to 6 being
minors were represented by their natural guardian, mother by name
N.Saritha, wife of defendant No.1. A vakalath was filed for defendants 2
to 6 on 30.07.2012 reporting that the guardian of the minors defendants 5
and 6 died. No steps were taken subsequently appointing any others as
guardian of defendants 5 and 6 and no written statement was filed for
defendants 2 to 6. Exs.A8 to A12 were marked on 30.08.2017. It was
recorded that there was no representation for the defendants on the said
date and as such the trial court proceeded to pass the judgment showing
the defendants as ex-parte. The written statement filed by defendant No.1
was also not considered by the trial court.
15. It appears that a lot of delay was committed by the plaintiff in
proceeding with the matter from the year 2006 to 2017 in filing petitions
for impleading parties and in marking the documents. Meanwhile, the
defendants also lost track of the case and not pursued the matter. The
trial court also committed an error in not taking into consideration even
the pleadings filed by defendant No.1. The docket proceedings of the
trial court also would not disclose that the defendants were set ex-parte.
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Hence, considering all these aspects, it is considered fit to set aside the
judgment of the trial court in O.S.No.246 of 2006 dated 03.10.2017
directing both the parties to proceed with the matter diligently and the
trial court is directed to conduct day to day proceedings and to dispose of
the matter within a period of three months on merits.
16. In the result, the Appeal Suit is allowed setting aside the judgment
of the trial court in O.S.No.246 of 2006 dated 03.10.2017 directing the
trial court to proceed with the matter on merits by giving an opportunity
to both the parties on record to adduce evidence and proceed to hear the
matter on merits.
C.M.A.No.507 of 2023:
17. This Civil Miscellaneous Appeal is filed by the appellants -
defendants 1 to 4 and 6 aggrieved by the order passed in E.P.No.22 of
2018 in O.S.No.246 of 2006 dated 19.04.2023 on the file of the Principal
District & Sessions Judge - cum - Family Court, Medchal-Malkajgiri
District at Malkajgiri.
18. Heard the learned counsel for the appellants - J.Drs. and the
learned counsel for the respondent - D.Hr.
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19. Learned counsel for the appellants - J.Drs. submitted that the D.Hr.
has to deposit the balance sale consideration of Rs.10,31,750/- on or
before 03.12.2017 within 60 days of the judgment and decree dated
03.10.2017. But filed a memo on 23.02.2018 stating that he deposited the
money as per the direction of the court below, which was not in
accordance with law.
20. He further submitted that no petition was filed for extension of
time to deposit the amount under Section 28(3) of the Specific Relief Act,
1963. The D.Hr. has no right to deposit the amount without obtaining
leave or permission of the Court. No explanation for delay in depositing
the amount before the Court was submitted by the decree holder. The
decree holder failed to comply the conditions imposed in the judgment
and decree dated 03.10.2017 and prayed to set aside the orders passed by
the learned Principal District & Sessions Judge - cum - Family Court,
Medchal-Malkajgiri District at Malkajgiri in E.P.No.22 of 2018 dated
19.04.2023, wherein it was held that there was no mistake or delay on the
part of the decree holder to comply the conditions with regard to deposit
of the balance sale consideration.
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21. However, considering that E.P.No.22 of 2018 was filed to execute
the judgment and decree in O.S.No.246 of 2006 and as it is considered fit
to set aside the ex-parte judgment and decree in O.S.No.246 of 2006 by
giving an opportunity to the defendants to contest the matter on merits, it
is considered fit to allow this appeal setting aside the order of the learned
Principal District Sessions Judge - cum - Family Court, Medchal-
Malkajgiri District at Malkajgiri in E.P.No.22 of 2018 dated 19.04.2023.
22. In the result, both A.S.No.54 of 2021 and C.M.A.No.507 of 2023
are allowed setting aside the impugned orders giving an opportunity to
the appellants - defendants to contest the matter in O.S.No.246 of 2006
on merits and the trial court is directed to dispose of the same within a
period of three (03) months. No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if
any shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 02.09.2024
Nsk.
