V. Chinnappa and Others vs T. Shantharaju and Others

B.S. Patil, J—Defendants 1 & 2 in O.S. No. 8627/2006 have filed C.R.P. No. 408/2015 under Section 115 CPC challenging the order dated 27.07.2015 dismissing I.A. No. 8 filed by them under Order VII Rule 11(d) read with Section 151 CPC for rejection of plaint as barred by law.

W.P. Nos. 32962-964/2015 are also filed by the very defendants challenging the common order dated 27.07.2015 whereunder the Trial Court allowed I.A. Nos. 9, 10 & 11 filed by the plaintiff. I.A. No. 9 was filed under Order I Rule 10(2) CPC to implead BDA as additional defendant in the suit. I.A. No. 10 was filed under Section 64 of BDA Act, 1976 seeking dispensation of issuance of mandatory notice to BDA. I.A. No. 11 was filed seeking amendment of the plaint.

Common arguments have been addressed in the revision petition and writ petitions by the learned counsel for both parties.

Contentions urged by the learned counsel for the revision petitioner - defendants are that the suit filed seeking specific performance of the Agreement dated 04.04.2002 is not maintainable and in the face of the averments made in the plaint, it could be gathered that the relief sought was vague; there was no description of the suit property; no stipulation regarding time limit prescribed in the agreement; when the Agreement dated 04.04.2002 was entered into, site bearing No. 1071 was not allotted or sold in favour of the defendants by the BDA and therefore, the plaint was liable to be rejected.

It is his further submission that there was no consideration in the Agreement dated 04.04.2002 for sale of site bearing No. 1071. He has also contended that even site No. 1071 which was later on allotted/sold in favour of the defendants was cancelled by the BDA vide communication dated 25.05.2013 pursuant to the order dated 16.09.2011 passed by this Court in W.P. No. 328/2008 and therefore, subsequent events rendered grant of any relief in favour of the plaintiff impermissible and impossible and therefore, the plaint was liable to be rejected. It is his submission that these aspects have been either wrongly dealt with or left unnoticed by the Trial Court thereby rendering the order passed illegal warranting interference in exercise of revisional jurisdiction by this Court.

It is his next contention that in terms of Section 16(c) of the Specific Relief Act, it was mandatory for the plaintiff to plead readiness and willingness to perform his part of the contract, but in the plaint, no such plea has been taken and therefore, plaintiff was not entitled for any relief and the plaint was liable to be rejected. In support of his contention, he has placed reliance on the judgment of the Apex Court in the case of Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, AIR 2003 SC 1391 : (2003) 3 SCALE 331 : (2003) 10 SCC 390 : (2003) 2 SCR 1068 : (2003) AIRSCW 1830 : (2003) AIRSCW 6973 : (2003) 3 Supreme 248 : (2004) 1 Supreme 87 .

Learned counsel appearing for respondent No. 1 - plaintiff strongly supports the order passed by the Court below. He invites the attention of the Court to the factual aspects involved in the case to contend that first Agreement entered into between the parties was on 17.08.1998, whereunder the revision petitioners - defendants agreed to sell 2 acres 4 guntas of land in Sy. No. 33/3 of Gollahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, for total sale consideration of Rs. 9,03,000/- by receiving advance amount of Rs. 5,43,000/-. The said land was acquired for formation of Anjanapura layout by Preliminary Notification dated 20.03.2001, followed by Final Declaration dated 21.03.2002; this necessitated another agreement being entered into between the parties on 04.04.2002 whereunder the revision petitioners - defendants agreed for sharing the amount of compensation and also agreed to sell one site to be allotted by the BDA in favour of land-loser-defendants in the acquisition; however, defendants did not come forward to execute the Sale Deed of the sites allotted by the BDA, instead sold one of the sites allotted in favour of a third party.

The Trial Court rejected application I.A. No. 8 on the ground that it was not shown before the Court that the suit filed was barred by any law or that the plaintiff did not have cause of action for the relief of specific performance of the agreement sought by him. As the question regarding absence of plea of readiness and willingness in the plaint averments was not raised in the application I.A. No. 8 and was not canvassed before the Court below, the same has not been dealt with by the Court below.

In support of his contention that disputed questions cannot be decided at the time of considering application filed under Order VII Rule 11(d) CPC and that Order VII Rule 11(d) applies to those cases only where statement made by the plaintiff in the plaint, without any doubt or dispute, showed that the suit was barred by any law in force, learned counsel for respondent No. 1 has placed reliance on the judgment in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association, (2005) 4 CTC 489 : (2005) 12 JT 302 : (2005) 7 SCC 510 : (2005) 2 SCR 1030 Supp .

Having heard the learned counsel for both parties and on careful perusal of the pleadings, materials on record and the impugned order, the undisputed facts would reveal that there was an Agreement to Sell dated 17.08.1998 entered into between the plaintiff and defendants, whereunder defendants agreed to sell 2 acres 4 guntas of land in Sy. No. 33/3 to the plaintiff. Execution of this agreement which has been marked in evidence as Ex. P1 is not in dispute. The receipt of advance amount under this agreement is also not in dispute. The fact that land in question came to be acquired by the BDA for formation of further extension of Anjanapura Layout and possession of the same was taken over is also not in dispute.

Indeed, because of this acquisition of the land, which was the subject matter of Agreement to Sell in favour of the plaintiff, another Agreement dated 04.04.2002 was entered into, whereunder defendants and plaintiff agreed for sharing of compensation amount. Substantial amount out of compensation payable had to be given to the plaintiff. Further, clause 3 in the said Agreement provides that defendant shall execute a Sale Deed in respect of one of the sites to be allotted by the BDA in favour of the plaintiff. It is in order to enforce this clause in the said Agreement, the suit O.S. No. 8627/2008 has been filed by the plaintiff. The fact that BDA had indeed come up with a proposal to the defendants to allot sites by framing a Scheme has been adverted to by the Trial Court in the order under challenge. It is also not in dispute that two sites bearing Nos. 420 and 1071 both situated at 11th Block of Anjanapura Further Extension were indeed allotted and registered Sale Deeds were executed by the BDA in the name of defendants on 27.03.2006.

Contention of the learned counsel for the revision petitioner that as site No. 1071 was not allotted/sold by the BDA at the time when the Agreement was entered into and that it was not mentioned as subject matter of the Agreement dated 04.04.2002 relief sought for specific enforcement of the agreement in respect of the said site is not maintainable cannot be entertained as a ground to reject the plaint. Rejection of the plaint has to be based on the averments made in the plaint from which it has to be demonstrated that the relief sought by the plaintiff was barred by any law. The very case of the plaintiff in this suit is that in view of acquisition of land which was the subject matter of earlier Agreement for Sale and in the light of entitlement of defendants to have sites allotted from the BDA in lieu of acquisition of their land, both parties agreed that out of the two sites to be allotted by the BDA to the defendants, one has to be sold in favour of the plaintiff.

Question whether such a claim for specific enforcement of the contract in respect of a site which was to be allotted and which was not indeed allotted at the time when the Agreement was entered into could be specifically enforced or not is not a matter to be considered at the stage when application for rejection of plaint has to be considered. Similarly, whether plaintiff has indeed pleaded his readiness and willingness to perform his part of the contract and whether totality of the averments made taken together tantamount to compliance by the plaintiff of the requirement under Section 16(c) of the Specific Relief Act are also not matters to be examined at the stage when the application for rejection of plaint has to be considered. They are matters to be examined at an appropriate stage during the course of trial. Plaint also cannot be rejected on the ground that subsequently, by virtue of an order dated 25.05.2013 passed by this Court in W.P. No. 328/2008 BDA cancelled the allotment/sale of site No. 1071 made in favour of defendants during the year 2013 because the same cannot be made basis for rejection of the plaint.

It has to be also noticed at this stage that because of cancellation of allotment, defendants have moved for allotment of alternative site by the BDA and it is in this background, plaintiff has filed application seeking amendment of the plaint narrating certain events that have taken place subsequently which are the subject matter of the order passed on I.A. 11 for amendment challenged in W.P. Nos. 32962-964/2015. Therefore, it cannot be said that the relief sought by the plaintiff and the grounds urged in respect of the said relief are barred by any law and the plaint had to be rejected at the threshold under Order VII Rule 11(d) CPC. Hence, the revision petition being devoid of merit deserves to be dismissed.

Insofar as writ petitions are concerned, challenge is in respect of the common order passed allowing applications I.A. Nos. 9, 10 & 11 filed by the plaintiff. Plaintiff filed the said I.As. contending inter alia that in view of the nature of the relief sought in the suit seeking enforcement of the Agreement pertaining to the site allotted/to be allotted by the BDA in favour of defendants/land-losers in lieu of their lands having been acquired and in the background and settings of facts involving two Agreements of Sale, seeking impleadment of BDA, dispensation of issuance of mandatory notice to BDA and also for amendment of the plaint.

These applications have been considered together by the Trial Court. It has come to the conclusion that presence of BDA was necessary for effective and final adjudication of the lis between the plaintiff and defendants. Indeed, the land has been acquired by the BDA and in lieu of acquisition, BDA had sold/allotted site Nos. 420 and 1071 in favour of the defendants and Agreement of Sale dated 04.04.2002 which is the subject matter of the suit for specific performance stipulated that defendants would sell one of the sites to be allotted in their favour to the plaintiff. Now that the allotment of site bearing No. 1071 has been cancelled by the BDA and the BDA is required in law to allot an alternative site to the defendants, plaintiff has rightly made an application seeking to implead the BDA.

The BDA has not filed any objection for its impleadment. Therefore, the Trial Court has rightly come to the conclusion that presence of BDA for effective adjudication of the dispute was necessary.

Insofar as the order dispensing with the requirement of issuance of notice under Section 64 of BDA Act is concerned, defendants cannot make any grievance regarding the same. The Court below has exercised its discretion and has come to the conclusion that requirement of issuance of notice in the light of the facts and circumstances of the case deserved to be dispensed with.

As regards amendment of the plaint which has been allowed, learned counsel for the petitioner strongly contends that a new plea cannot be introduced after the trial has commenced in the light of the bar contained in the proviso to Order VI Rule 17 CPC. In this regard, he has placed reliance on the judgment of this Court in the case of Smt. Shobha Surendar and Sri. Y.S. Surendar Murthy Vs. Sri. C.R. Nagaraja Setty and Others .

On careful consideration of the proposed amendment to be incorporated, reasons recorded by the Court below, I am of the view that the proposed amendment is the result of cancellation of allotment of site No. 1071 by the BDA which was made in the year 2013. This factum of cancellation of the site allotted in favour of the defendants was not pleaded before the Court below in the written statement by the defendants and it was for the first time brought to the notice of the plaintiff in the form of averments made in the affidavit filed in support of the application seeking rejection of plaint. Therefore, having come to know about all subsequent events regarding cancellation of allotment already made in favour of defendants, plaintiff sought for amendment of the plaint to modify the relief sought and also to narrate certain subsequent events that had taken place regarding cancellation of site allotted in favour of the defendants. No exception can be taken to the order passed by the Court below allowing the said applications.

Proviso to Order VI Rule 17 CPC or for that matter, the judgment rendered in Smt. Shobha Surendar''s case referred to supra will not come to the aid of the defendants. The pleadings are sought to be amended by virtue of subsequent events which the plaintiff despite due diligence could not plead before the commencement of trial. Hence, the writ petitions are devoid of merit.

In the result and for the foregoing reasons, revision petition and the writ petitions are dismissed. However, it is made clear that observations made in the course of this order are confined to the disposal of the controversy raised in these applications and shall not affect the main matter. As the suit is of the year 2006, the Trial Court is directed to dispose of the same as expeditiously as possible, at any rate, within a period of one year from the date of receipt of a copy of this order.