Jyotiba vs J.R. Shanmukhappa

B. Veerappa, J—The 1st defendant filed the above two writ petitions against the order dated 2.01.2015 passed on I.A. Nos. 5 and 6 in O.S. No. 55/2011 dismissing the application filed under Section 34 of the Stamp Act and the application filed under Order 14 Rule 5 r/w 151 of Code of Civil Procedure.

The respondent who is the plaintiff before the Trial Court filed O.S. No. 55/2011 for specific performance of contract to enforce the agreement dated 1.3.2010 alleged to have been executed by defendant Nos. 1 to 3 contending that defendant Nos. 1 to 3 are the members of Joint Family and defendant No. 1 is the Manager of the joint family properties and all the defendants have executed the agreement of sale in favour of the plaintiff on 1.3.2010 for sale consideration of Rs. 63,75,000/- and they have received Earnest Money/Advance of Rs. 16,00,000/- as on the date of execution of the agreement with certain conditions and in spite of repeated requests they are not executing the sale deed. Therefore, the plaintiff filed the suit. The 1st defendant filed written statement and other defendants adopted the same and the defendants denied the entire plaint averments and contended that the very suit filed by the plaintiff is not maintainable under Order 2 Rule 2 of Code of Civil Procedure. The plaintiff has filed the suit for injunction against the defendant in O.S. No. 36/2011 is pending for adjudication between the parties and also contended that the defendants entered into agreement with the plaintiff on 1.3.2010. As per the terms of the agreement of sale, the plaintiff ought to have paid remaining sale consideration amount within 30.04.2010 and get the sale deed registered, failing which, the defendants have every right to alienate the property to others, therefore contended the plaintiffs are not entitled for any relief and hence, sought for dismissal of the suit. After completion of plaintiffs evidence the matter was posted for defendants evidence. At that stage, the 1st defendant filed an application I.A.5 under Section 34 of the Karnataka Stamp Act requesting the Court to impound Ex. P1 Agreement of Sale contending that the District Registrar without any authority after expiry of one month collected the amount of Rs. 16,000/- which is illegal and District Registrar has no power to collected the proper stamp duty etc. He has also filed another application I.A.6 under Order XIV Rule 5 r/w Section 151 of CPC requesting the Court to frame additional issues and modify issue No. 3 contending that the plaintiffs specifically contended in the plaint at paragraph 8 that as per the agreement of sale, the defendants got measured the property and fixed the boundary in the presence of the plaintiff before 10.04.2010. Therefore, the Court had to frame the issue and shift the burden on the plaintiff Therefore has prayed for allowing the applications.

The said applications were resisted by the plaintiffs by filing objections separately.

After hearing both the parties, the learned Addl. Senior Civil Judge passed separate impugned order dated 2.1.2015 and has dismissed I.A. Nos. 5 and 6. Hence the present writ petitions are filed.

I have heard the learned counsel for the parties to the lis.

Sri S.R. Hegde, learned counsel for the petitioner contended that the impugned order passed by the Trial Court dismissing I.A. Nos. 5 and 6 are erroneous and a perusal of the sale agreement indicates that the required stamp duty and penalty was paid by the respondents at Rs. 16,000/- after lapse of 5 months after registration of Ex. P.1 and in view of the earlier suit filed by the respondent in O.S. No. 36/2010, the present suit itself is not maintainable etc. Therefore, he sought to set aside the impugned order passed by the Court below.

Per contra, Sri N.P. Vivek Mehta, learned counsel for the caveator-respondent sought to justify the impugned order and contended that before filing the suit he has filed sufficient stamp duty before the District Registrar who after satisfying relevant provisions of the Stamp Act has permitted to pay the stamp duty. Therefore, there is no illegality in the orders passed by the Court below and also contended that there is already an issue framed. Therefore contends there is no need to frame additional issue and hence sought to dismiss the writ petitions.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is not in dispute that the respondent filed a suit for specific performance to enforce the agreement said to have been executed by defendant Nos. 1 to 3 and the defendants have not disputed the fact that they have executed the agreement on 1.3.2010 and further stated that the plaintiff has violated the terms and conditions of the agreement. This is a matter to be decided only after trial and after final adjudication between the parties.

While considering I.A.5 the Trial Court recorded a specific finding that considering the provisions of Section 34 of the Karnataka Stamp Act and looking into the material available on record, it appears to the Court that already competent authority has accepted the deficit stamp duty and already Chief examination and cross-examination of PW.1 is over and at this belated stage, the contention of the defendant is not acceptable one. Defendants have not disputed the agreement of the sale. Looking into the endorsement made by the learned District Registrar, Haven, it is not justifiable to impound the said document since it does not suffer from any deficit stamp duty. Accordingly he dismissed the application.

After considering the entire material on record, it is not in dispute that before filing the suit the defendant paid entire deficit stamp duty as per the order passed by the District Registrar and admittedly the said order is not questioned by anybody including the defendants, therefore accepting the material on record the impugned order is in accordance with law. Petitioner has not made out any ground to interfere with the impugned order passed on I.A. Nos. 5 and 6.

It is also not in dispute that in view of the pleading in the plaint and the averments made in the written statement of the parties, the Trial Court already framed the issue. The defendant by way of an application under Order XIV Rule 5 of CPC requested the Court to frame additional issue to modify issue No. 3 to the effect that the agreement of sale is on proper stamp paper and agreement of sale is illegal. Though the agreement is not disputed by the defendants, they are only disputing the terms and conditions. It is for the defendants to prove that the plaintiff has violated the terms and conditions and hence cannot enforce the suit for specific performance. In view of the terms and conditions of Clause 4 of the agreement, whether the terms and conditions has been violated or not has to be decided after adjudication of the final matter.

Considering the entire material on record. The Trial Court recorded a specific finding that after careful perusal of the additional issue it appears to the Court that the said issues are not required to be framed to decide the area of controversy. As there is no dispute with regard to the execution of agreement of sale dated 1.3.2010 executed by the defendants, it is not necessary to frame the additional issue to the effect whether the said agreement of sale is on proper stamp paper and it is legal and proper. Therefore, it is not necessary to frame the additional issue. Viewed from any angle, the impugned order is in accordance with law.

In view of the aforesaid reasons, impugned order is perfectly valid and no interference is called for. Accordingly impugned orders passed by the Court below is confirmed.

The petitioner has not made out any ground to interfere with the impugned order passed by the Court below on I.A. Nos. 5 and 6. Accordingly writ petitions are dismissed.