IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY FEBRUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.55787-55789/2016 (GM-CPC) BETWEEN:
1. SMT. RATHNAMMA, W/O LATE SHIVARAME GOWDA, AGED ABOUT 62 YEARS, R/AT NADAVATHI VILLAGE, KASABA HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT-562114.
2. SMT. UMA, D/O LATE SHIVARAME GOWDA, AGED ABOUT 38 YEARS, R/AT SUDDAGUNTEPALYA VILLAGE, C. V. RAMAN NAGAR POST, BENGALURU-560075.
3. SMT. JAYALAKSHMI, D/O LATE SHIVARAME GOWDA, AGED ABOUT 35 YEARS, R/AT NADAVATHI VILLAGE, KASABA HOBLI, HOSKOTE TALUK, BENGALURU RURAL DISTRICT-562114.
... PETITIONERS (BY SRI SHIVASHANKAR K., ADVOCATE) AND:
SRI. B.NARAYANA SWAMY, S/O LATE BYRAPPA, AGED ABOUT 49 YEARS, R/AT NO.8, MYTHRI LAYOUT, PATTANDUR AGRAHARA, WHITEFIELD POST, BENGALURU-560066.
... RESPONDENT …… THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT AT BENGALURU ON I.A.NO.2 AND 3 IN O.S.NO.1705/2013 DATED 27.9.2016 AT ANNEXURE-J.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants have filed these writ petitions against the order dated 27th September 2016 dismissing I.A.Nos.2 and 3 filed under Order VII Rule 11(a) and 11(d) of the Code of Civil Procedure made in O.S.No.1705/2013 on the file of the I Additional Senior Civil Judge, Bengaluru Rural District.
2. The respondent who is the plaintiff before the Trial Court filed suit for specific performance of the contract directing the defendants to receive the balance consideration of `55,50,000/- from the plaintiff and to execute sale deed in terms of the agreement of sale dated 09.06.2006 in favour of the plaintiff in respect of the suit schedule property and put the plaintiff in physical possession and enjoyment of the suit schedule property and in the event of failure on the part of the defendants to perform their part of the contract, to execute the sale deed in favour of the plaintiff for and on behalf of the defendants, contending that defendants 1 to 3 are the absolute owners in peaceful possession and enjoyment of the suit schedule property and they executed an agreement of sale in favour of the plaintiff on 09.06.2006 agreeing to sell the suit schedule property for total sale consideration of `23,50,000/- per acre and on the date of entering into agreement of sale, the defendants have received advance amount of `10,000/- and further advance sale consideration of `9,90,000/- by way of cheque bearing No.296492 and `5,00,000/- by way of cheque No.2986498 both drawn on Union Bank of India, Bengaluru. Plaintiff further agreed to pay a further advance of `15,00,000/- within a month from the date of the agreement and the balance sale consideration at the time of execution of the sale deed. It is further contended that plaintiff paid another sum of `5,00,000/- on 24.02.2012 by way of cash and defendants 1 to 3 have acknowledged the same by executing an endorsement. Despite such undertaking, defendants 1 to 3 failed to perform their part of the contract. Plaintiff was always ready and willing to perform his part of contract. Therefore, he filed the suit.
3. Defendants 1 to 3 filed written statement, denied the plaint averments and contended that the defendants never executed any agreement in favour of the plaintiff as alleged in the plaint and the suit is barred by limitation and there is no cause of action to file the suit and prays for dismissal of the suit.
4. When the matter was posted for framing of issues, defendants 1 to 3 filed I.A.Nos.2 and 3 under VII Rule 11(a) read with Section 151 of Code of Civil Procedure praying to reject the plaint on the ground that the plaintiff has no cause of action to maintain the suit and the suit is barred by limitation. The applications were resisted by the plaintiff by filing objections.
5. The Trial Court considering the entire material on record, by the impugned order dated 27.09.2016, dismissed the applications. Hence the present writ petitions are filed.
6. I have heard the learned counsel for the petitioner.
7. Learned counsel for the petitioner/defendants vehemently contended that the impugned order passed by the Trial Court dismissing the applications is erroneous, contrary to the material on record. He specifically contended that the original agreement was executed on 09.06.2006 and the suit was filed in the year 2013 and therefore, the suit is clearly barred by limitation and the contents of the plaint are contrary to the alleged agreement executed by the defendants and there is no endorsement issued by the defendants, the terms of the agreement clearly indicates that the agreement has to be enforced within three months from the date of execution. He further contended that by reading the agreement, it clearly indicates that there is no cause of action for the plaintiff to file the suit and it is barred by limitation. The said aspect of the matter is not considered by the Trial Court. Learned counsel further contended that when the suit itself is not maintainable, question of proceeding further with the suit does not arise at all and therefore, sought to set- aside the impugned order passed by the Trial Court by allowing the writ petitions.
8. In view of the aforesaid contentions urged by the learned counsel for the petitioners, the only point that arises for consideration in these petitions is:
“Whether the Trial Court is justified in passing the impugned order dismissing I.A.Nos.2 and 3 filed under Order VII Rule 11(a) of Code of Civil Procedure, in the facts and circumstances of the case?
9. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners and perused the entire material on record carefully.
10. It is the specific case of the respondent plaintiff before the Trial Court that the defendants have executed an agreement of sale agreeing to sell the suit schedule property in his favour for a sum of `23,50,000/- per acre and received advance sale consideration on different dates and also issued endorsement. Despite of the same, defendants have not performed their part of the contract and therefore, filed the suit.
11. At paragraph 7 of the plaint, it is specifically contended that, cause of action for the suit arose on 09.06.2006, 16.08.2008, 09.11.2008 and 24.02.2012 and 07.11.2013 within the jurisdiction of the Court below. The plaint further depicts that last transfer of amount according to the plaint was on 24.02.2012. On that day, defendants received a sum of `5,00,000/- by way of cash and have issued an endorsement. The suit is filed on 29.11.2013 within three years from the date of last transaction. The plaintiff also contended that cause of action arose on 07.11.2013 within the jurisdiction of the Court below.
12. The learned counsel for the petitioners vehemently contended that a reading of the sale agreement indicates that the suit is not maintainable and the suit is barred by limitation. Unless the agreement was marked before the Court below, it is not possible for the Court to consider the contents of the agreement or written statement or contents of the application filed by the defendants. It is well settled principle that plaint can be rejected only on the basis of the plaint averments and not on the basis of the written statement filed by the defendants and on the basis of the documents relied upon by the defendants. The material on record clearly discloses that the suit filed on 03.12.2013 even assuming the last payment was made on 24.02.2012, though plaintiff stated that cause of action arose on 07.11.2013, the suit is filed within three years from the date of last transaction between the parties.
13. For the reasons stated supra, the point raised in the writ petition has to be answered in affirmative holding that the impugned order passed by the Trial Court is just and proper.
14. In view of the same, the impugned order passed is in accordance with law. Defendants have not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India. Writ Petitions are dismissed. However, the trial Court is directed to expedite the suit as early as possible in accordance with Law.
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