IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.488 OF 2015 BETWEEN 1. SMT. SHIVAMMA W/O. LATE ANJINAPPA AGED ABOUT 65 YEARS 2. SRI. A. ASHOK KUMAR S/O LATE ANJINAPPA AGED ABOUT 41 YEARS 3. SRI. A. SHIVARAJA S/O LATE ANJINAPPA AGED ABOUT 38 YEARS 4. A. SHANTHA D/O LATE ANJINAPPA AGED ABOUT 35 YEARS 5. SRI. A. RAMESH S/O LATE ANJINAPPA AGED ABOUT 32 YEARS ALL ARE RESIDENTS OF GANGASANDRA ROAD, MELEKOTE, TUMAKURU. ... PETITIONERS (BY SRI. M S NAGARAJA, ADVOCATE) AND SRI. NARAYANA S/O LATE RAMANNA AGED ABOUT 70 YEARS RETIRED STENOGRAPHER DISTRICT & SESSIONS COURT, TUMAKURU R/O “SRI HARI”
OPP. GOVERNMENT PRIMARY SCHOOL, MARALUR, TUMAKURU-5. ... RESPONDENT (BY SRI. SACHIN B S, ADVOCATE) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 11.08.2015 PASSED ON I.A.Nos.3 & 4 IN O.S.NO.432/2015 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, TUMKUR, REJECTING THE IA.Nos.3 & 4 FILED U/O 7 R-11 R/W SECTION 151 OF CPC.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners are before this Court under Section 115 of CPC, aggrieved by the order dated 11-8-2015 on I.A.No.4 passed in O.S.No.432/2015 on the file of the III Additional Civil Judge and JMFC, Tumkur.
2. The petitioners are defendants and respondent is plaintiff in O.S.No.432/2015. The suit filed by plaintiff for specific performance of sale agreement dated 22-11-1991. The defendants filed application under Order 7 Rule 11 read with Section 151 of CPC praying to reject the plaint since there is no cause of action to file the suit on the basis of forged agreement of sale and the suit is barred by law of limitation. The plaintiff opposed the said application by filing objections.
3. The trial Court under impugned order rejected the application-I.A.No.4 against which, the defendants are before this Court in this civil revision petition.
4. Heard the learned counsel for the petitioners- defendants and learned counsel for the respondent- plaintiff. Perused the petition papers.
5. Learned counsel for the petitioners submits that the details of the schedule property is not properly described and also the property is not identifiable. Further, he submits that the sale agreement is dated 22-11-1991 and the suit is filed in the year 2015, nearly after 23 years from the date of the sale agreement. The suit filed by the plaintiff for specific performance of sale agreement is clearly barred by time. Hence, the rejection of the application-I.A.No.4 by the trial Court is wholly illegal and suffers from material irregularity. Thus, he prays for allowing the civil revision petition.
6. Per contra, learned counsel for the respondent- plaintiff submits that at this stage, the suit filed for specific performance of sale agreement cannot be rejected as the suit averment would disclose the cause of action and also the plaintiff has sufficiently explained the cause of action for filing the suit. Therefore, he prays for dismissal of the civil revision petition.
7. Admittedly, the suit is one for specific performance of sale agreement dated 22-11-1991. The suit schedule property reads as under:-
Schedule “Converted land bearing S.No.15/2 measuring 3- 09 acres vide Deputy Commissioner’s order B.Dis.No.ALNSR.94/1991-92, in which 0-25 guntas was left for TUDA for construction of water tank, net extent 2-24 acres in which 59 sites are formed, out of which, two sites measuring 30 x 40 feet each, bounded by (total converted land) East: Maralur Gadi, West: 0-25 guntas left in S.No.15/2 for construction of water tank; North: land bearing S.No.15/1 and South: road.”
8. A reading of the schedule would indicate that the plaintiff is claiming two sites measuring 30 x 40 feet each in a converted land in Sy.No.15/2 measuring 3 acres 9 guntas. Further, the plaint averments made in Paragraph Nos.9 and 10 reads as under:-
“9. It is further submitted that the sale agreement is dated 22-11-1991 i.e., more than 23 years. Thus, with regard to the limitation to file this suit after lapse of 23 years, the plaintiff submits that in the sale agreement, time is not essence of the contract. The executant of the sale agreement i.e., deceased Anjinappa had agreed to execute regular registered sale deed after obtaining layout approved by the TUDA. But, during his life time, the said Anjinappa had not obtained layout approved in respect of the converted land till his death in the year 1993. Further, the defendants herein who are the L.Rs of the deceased, have also not obtained the layout of the said converted land approved from TUDA, till they denied the sale transaction in the month of August 2014 as stated in para-5 of the plaint. Thus, the plaintiff has got limitation to file this suit. Further, with regard to cause of action, the plaintiff submits that he has been requesting and demanding the defendants to execute regular sale deed with respect to the revenue sites as per sale agreement from the date of death of Anjinappa. But, the defendants are dodging the same on one reason or the other as stated supra till August 2014 when they denied the sale transaction and they have refused to execute registered sale deed. Thus, from the date of refusal i.e., from August 2014, the cause of action arose for filing of this suit. Hence, this suit for specific performance of contract and such other reliefs and it is in time.
10. The cause of action for the suit arose from August 2014 when the defendants have denied the sale transaction and refused to execute regular registered sale deed as stated in para-9 of the plaint and subsequently on 19-8-2014 the date of legal notice issued to the defendants calling upon them to execute regular registered sale deed and subsequently, when the defendants have failed to execute regular registered sale deed, at Melekote, Tumkur within the jurisdiction of this Hon’ble Court.”
9. A reading of the above averments of the suit makes it clear that the plaintiff has explained the time taken and cause of action for filing the suit. The above averment discloses that the cause of action for the suit arose in the month of August 2014. The limitation is a mixed question of fact and law, which requires trial. A reading of the plaint in its entirety would indicate that the plaintiff has made triable case. Therefore, the trial Court has rightly rejected the application.
10. The petitioners-defendants have not made out any ground to interfere with the order passed by the trial Court. No material or jurisdictional error is pointed out. Hence, the civil revision petition is dismissed.
Sd/- JUDGE SMJ