Civil Suit No. 199/600 of 2013 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.158 OF 2018 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailed the judgment and decree dated 23.10.2017 and 03.11.2017 respectively passed by the learned 2nd Additional District Judge, Bhubaneswar in RFA No.7/14 of 2016 and cross-objection No.06 of 2016 partly allowed the judgment and decree dated 28.01.2016 and 06.02.2016 respectively passed by the learned 2nd Additional Senior Civil Judge, Bhubaneswar in Civil Suit No.199/600 of 2013-2004. ---- -versus- Deepa Sahoo Ananda Chandra Das ::: ::: Appellant. Respondent. Appeared in this case by Hybrid Arrangement (virtual/physical mode) ============================================ For Appellant :::: M/s. A.P. Bose, N. Hota, D.J. Sahoo, S.K. Hota, Advocates. For Respondent :::: Mr. Y. Mohanty, Sr. Advocate, M/s. Ashutosh Mishra & J.K. Mohapatra, Advocates. CORAM: MR. JUSTICE D.DASH DATE OF HEARING: 15.02.2023 :: DATE OF JUDGMENT:: 28.02.2023 D.Dash, J. The Appellants by filing this Appeal under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned 2nd Additional District Judge, Bhubaneswar in RFA No.7/14 of 2016 and cross-objection No.06 of 2016. Page 1 of 14 // 2 // By the same, the Appeal filed by the present Appellant under Section-96 of the Code has been allowed in part. 2.
Legal Reasoning
The Appellant as the Plaintiff had filed the suit for specific performance of contract, permanent injunction, arraigning the Respondent as the Defendant. In that suit, the Respondent as the Defendant had filed a Counter Claim. The suit having been dismissed, the Counter Claim stood decreed, directing the Appellant (Plaintiff) to hand over the vacant possession of the suit house to the Respondent (Defendant) within a time stipulated and on failure to be so evicted by the process of the Court. The Appellant (Plaintiff) being aggrieved by the judgment and decree passed by the Trial Court in non-suiting her and directing her eviction from the suit house, while allowing the Counter Claim, had carried the First Appeal. The Respondent (Defendant) being aggrieved by certain findings upon entering appearance in the said First Appeal, filed the cross- objection. 3. The Trial Court had passed the following orders:- “The suit of the plaintiff be and the same is dismissed on contest against the defendant but under the circumstances without any cost. The counter claim of the defendant be and the same is decreed on contest against the plaintiff but under the circumstances without any cost. Page 2 of 14 // 3 // The plaintiff is directed to handover the vacant possession of the suit house to the defendant within a period of three months hence, failing which the defendant is at liberty to execute the decree of this counter claim against the plaintiff as per law to which the plaintiff will be held liable for all costs and consequences thereof.” The First Appellate Court has ordered as under:-
Decision
“The appeal is allowed in part on contest. The cross objection of the respondent is dismissed on contest. The judgment dated 28.01.2016 and decree dated 06.02.2016 of learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar in Civil Suit no.199/600 of 2013-04 is modified. The defendant is to pay Rs.2,06,720/- (Rupees two lakhs six thousand seven hundred twenty) only with 9% interest per annum from 23.07.1997 till the date of payment / realization. The appellant is directed to handover the vacant delivery of possession of the suit house to the respondent within three months of receipt from the respondent of Rs.2,06,720/- (Rupees two lakhs six thousand seven hundred twenty) only within 9% interest per annum from 23.07.1997 till the date of payment/ realization. However, in the circumstances of the appeal, there is no order as to cost”. 5. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 6. Plaintiff’s case is that the property in suit, which has a house assigning with Quarter No.ER-84/11 and 84/12 (ground floor and first Page 3 of 14 // 4 // floor) having plinth area 980 sqft. The suit house was originally allotted by Orissa State Housing Board (OSHB) in favour of the Defendant. The Defendant was in possession in the suit premises. He wanted to sell the same in order to purchase new house somewhere else. The Plaintiff was in search of a house in the locality and so he expressed her willingness to purchase the same. Therefore, finally an agreement of sale was executed by the Defendant on 23.07.1997 agreeing to sale the suit property to the Plaintiff for a consideration of Rs.2,06,720/-. It was agreed with the Plaintiff would execute the sale- deed after obtaining necessary permission from the concerned Authority and she would not demand any excess amount at the time of registration of the sale-deed. On the date of execution of agreement, the Defendant received the total consideration and delivered physical possession of the suit house to the Plaintiff, who then renovated the same and applied for electric connection in the name of the Defendant and occupied the same. She also applied for taking water connection and obtained the same. It is stated that the Plaintiff is regularly clearing electricity bill and water bill as also the holding tax to the Municipal Authority. It is stated that she had paid full and final consideration as agreed between them and the Defendant has transferred his right and interest to the Plaintiff on the date of agreement. Page 4 of 14 // 5 // A general power of attorney had been executed by the Defendant in favour of the husband of the Plaintiff which was also registered. As per clause contained in the power of attorney, the Plaintiff has taken electricity and water connection and has been depositing the Municipal tax. The husband of the Plaintiff died on 28.03.2000, leaving behind the Plaintiff and three daughters. So, they could not take necessary steps to obtain order of permission from the Authority. The Plaintiff then approached the Defendant, who then turned deaf ear to her request. The Plaintiff then approached the OSHB to take immediate measure. They however did not do anything since there has been non-payment of instalments dues by the Defendant. Thus, it is said that the permission could not be obtained for the fault of the Defendant. The Defendant thereafter served a legal notice upon Plaintiff that he wanted to wriggle out of the agreement dated 23.07.1997 due to unwillingness of the Plaintiff for getting the sale-deed registration. The Plaintiff in reply expressed that she was always ready and willing to perform her part of the contract. It is further said that Defendant after receiving the reply, threatened the Plaintiff to disconnect the Plaintiff’s electricity connection to the house and drive them and their tenants from the house. The Plaintiff therefore, filed the suit. Page 5 of 14 // 6 // 4. The Defendant in filing the written statement also advanced Counter Claim. While traversing the plaint averments, it has been admitted that he had entered into an agreement with Plaintiff on 23.07.1997 and had permitted the Plaintiff to occupy the suit house from that date. It is stated that there was an outstanding loan of Rs.1,52,970/- in respect of said suit house and the Plaintiff through her husband had agreed to clear up the same for which the Defendant had executed power of attorney in favour of the Plaintiffs husband. It is stated that for that reason that they would be clearing the outstanding loan, the consideration in the agreement for sale was shown on a lower side than the prevailing market price. It has also been stated that the Plaintiff’s husband was required to clear up the outstanding dues of OSHB against the said house, since the house belonged to OSHB for sale of the same, the Defendant was required to obtain the permission and therefore the Plaintiff’s husband was to obtain the said permission by performing all required act in that regard. It is stated that the husband of the Plaintiff did not act in terms of the said agreement and therefore, the Defendant cancelled the power of attorney by executing deed of cancellation on 11.06.1998, which has been communicated to the Plaintiff and her husband. After lapse of 7 years, the Plaintiff did not show any anxiety for having the sale deed executed and registered. It is stated that for such non-payment of dues of Rs.1,52,970/- by the Page 6 of 14 // 7 // husband of the Plaintiff, the Defendant was compelled to pay Rs.3,15,518/-, which included interest and penal interest. It is stated that the Defendant by sending the notice had called upon the Plaintiff to take back the money paid by her at the time of execution for sale and vacate the suit house. The Defendant in stating that the Plaintiff has no right, title and interest over the property and is a trespasser in view of the fact that she failed to get the sale-deed executed by performing her parts of the contract, has pleaded that she has no right to continue to possess the suit house. In the Counter Claim, the prayer has been made for ejectment of the Plaintiff. 5. The Plaintiff in her written statement to the Counter Claim has reiterated all such facts which are pleaded in the plaint, in further asserting that the possession of the suit house is not at a trespasser and it had been duly permitted by the Defendant. It is also stated that the plaintiff being always ready and willing to perform her part of the contract, the question of her eviction from suit house does not arise. 6. With the above rival pleadings, the Trial Court has framed as many as ten (10) issues. Answering issue nos. 3 and 6, which are the attacks to the suit for non-joinder of necessary party i.e. OSHB and the entitlement of the Plaintiff to a decree for specific performance of Contract in respect of the suit house against the Defendant; upon Page 7 of 14 // 8 // examination of the evidence and their evaluation, the finding has been rendered against the Plaintiff, finding the fault in the matter with the Plaintiff and her husband in further concluding that the since the Plaintiff had earned some amount by letting out the suit house to some other tenants, she too is not entitled to get the refund of the advance consideration paid. The Trial Court has held that the vendor of the Plaintiff i.e. Defendant had no saleable right in respect of the suit house and therefore, the agreement for sale is not enforceable under the law and the suit as framed for reliefs claimed is not maintainable for non- joinder of the owner of the same i.e. OSHB, which is a necessary party. Answers to the other issues have followed the suite. 7. The First Appellate Court having confirmed the decision of the Trial Court as to refusal to pass a decree for specific performance of contract, has however directed the Defendant to pay a sum of Rs.2,06,720/- with interest @ 9% per annum from 23.07.1997 till payment and the Plaintiff has been directed to handover the vacant possession of the suit house to the Defendant within three months on receipt of the said sum from the Defendant. 8. The present Appeal has been admitted to answer the following substantial questions of law:- Page 8 of 14 // 9 // (a) Whether on the available evidence on record, more particularly the agreement for lease of houses (Ext.2), which is the basis for the Respondent (Defendant) to enter into the possession of the property in the suit, it would be right to hold that she had no alienable right when she had executed the agreement for sale (Ext.3) in favour of the Appellant (Plaintiff) and therefore, the contract is not enforceable? (b) Whether the First Appellate Court with its own findings is right in refusing to direct the Respondent (Defendant) to execute the sale deed pursuant to the agreement for sale (Ext.3) and in turn directing the Respondent (Defendant) to pay a sum of Rs.2,06,720/- with interest @9% with effect from 23.07.1997 till realization? 9. Learned Counsel for the Appellant (Plaintiff) submitted that the Courts below are not at all right in holding that the Defendant had no alienable right over the property so as to contract for sale of the same to the Plaintiff, since the property belong to OSHB as it was then a leasehold property in the hands of the Defendant. According to him, when the execution of the agreement for sale is not in dispute and so also, the payment of advance consideration in view of the evidence on record with the readiness and willingness on the part of the Plaintiff to fulfill her part of the contract all along, the relief of specific performance of contract has to be granted in favour of the Plaintiff as Page 9 of 14 // 10 // by now as per own showing, the Defendant has already cleared up the dues of the OSHB and as such has become the owner of the property. He, therefore, submitted that the Courts below are not all right in refusing to pass a decree for specific performance of contract. He submitted that the Plaintiff having been put in possession pursuant to the agreement for sale, Ext.3 and since she was and is always ready and willing to perform her part of the contract, the Plaintiff’s possession of the suit house ought to have been protected and no decree for ejectment could have been passed. It was also submitted that the First Appellate Court while directing the refund of advance consideration with interest even in that event ought to have properly compensated the Plaintiff which the equity demands. 10. Learned Senior Counsel for the Respondent (Defendant) while supporting the findings of the Courts below has invited the attention of the Court to the agreement for ‘Lease of House” between OSHB and Plaintiff, which has been admitted in evidence and marked Ext.2. He submitted that the Defendant having been in possession of the suit house on the strength of this agreement, Ext.3, his status in respect of the suit property is that of a lessee and by the time, the agreement for sale came into being, all the terms and conditions of the lease agreement having not been fulfilled or complied with, the Courts below are right in holding that the Defendant had absolutely no Page 10 of 14 // 11 // saleable right and the agreement for sale as had been executed by him is not enforceable in law. He further submitted that the First Appellate Court having directed the refund of the paid consideration to the Plaintiff with interest, there remains no scope for the Plaintiff to feel aggrieved when the Defendant after the order has already deposited with the Trial Court. 11. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also travelled through the plaint and written statement and have perused the evidence on record. 12. Admittedly, the Defendant had got the suit house on lease from the OSHB. The deed of lease has been admitted in evidence and marked Ext.3. It has been titled as “AGREEMENT FOR LEASE OF HOUSE”. The lease is for 90 years subject to the terms and conditions as set out in the said lease-deed. The Defendant obtained the said lease-deed on 06.06.1997. The Defendant had paid a sum of Rs.53,750/-, as part payment towards the cost of the building. In that deed of lease, it has been indicated that the OSHB would sale the suit land with the house standing thereon to the Defendant, on fulfillment of all the conditions. It is there that on execution of document, the Defendant shall register the same and on submission of the registration ticket, the Defendant would be put in possession of the premises. The Page 11 of 14 // 12 // agreement has been registered and accordingly, the Defendant has been put in possession. He was under the obligation to pay balance consideration of Rs.1,53,970/- to the OSBH. The condition number-13 which appears to be relevant for our purpose is as under:- “13. That on compliance of all the terms and conditions of this Agreement and on full payment of the entire balance consideration and the interest due thereon within the time stipulated in this Agreement, the first party shall at the cost of the second party execute and register a deed of sale in favour of the second party conveying the title, possession and all other interests it has in the demised premises in favour of the second party and on execution of the deed of lease the second party shall become the owner of the building and shall become a lessee under the Governor of Orissa and the first party shall not obstruct the possession of peaceful enjoyment of the property by the second party in any manner.” The above being read, it is seen that the Defendant on compliance of all the terms and conditions of the agreement, the full payment of entire balance consideration and the interest due thereon within the time stipulated in the agreement, a deed of sale would be executed by the OSHB at the cost of the Defendant and it would be registered; whereunder the title, possession and all other interest in respect of the suit house would stand conveyed to the Defendant and he shall become the owner of the building and then shall become a Page 12 of 14 // 13 // lessee directly under the State and the OSHB shall not obstruct the possession or interfere with the peaceful enjoyment of the property by that Defendant. The lease-deed having been executed on 06.06.1997, the agreement for sale has come into being on 23.07.1997. The Defendant under the said deed of lease was not even having authority to let out the premises to any one without specific prior written permission of the OSHB, which is certainly uptil the date of registration of the sale-deed. The entire deed of lease being read, no such condition is noticed therein that the Defendant-lessee had any authority to transfer his right to occupy the suit house pursuant to any agreement in favour of any one without the permission of the OSHB. No such condition also finds mention in the said Ext.3 that the lessee- Defendant can substitute another in his position so as to stand as the lessee under OSHB. He had no authority to sub-lease. In view of all these above, this Court is of the view that there is no infirmity with the findings of the Courts below that the Defendant had no alienable right over the suit property, when he executed the deed of agreement for sale. In that view of the matter, the agreement for sale as has come into being is not enforceable in the eye of law and therefore, the Plaintiff now being in possession of the suit house, when the Defendant has the right to occupy having already settled all such scores with the OSHB, the decree for eviction of the Plaintiff from the Page 13 of 14 // 14 // suit house as prayed for in the Counter Claim filed by the Defendant is held to be well in order. Coming to the aspect of refund of the money paid by the Plaintiff to the Defendant, this Court is of the considered view that in the facts and circumstances of the case, the First Appellate Court is right in directing refund of money paid by the Plaintiff to the Defendant. However, taking into account all the equitable factors and upon cumulatively viewing the same; this Court is of the view that interest @15% per annum with effect from 23.07.2017 over the said sum of Rs.2,06,720/- (Rupees two lakh six thousand seven hundred twenty) till payment, if is awarded would compensate the Plaintiff in a just and proper manner in meeting the ends of justice. 13. In the result, the Appeal stands disposed of with the modification of the decree passed by the First Appellate Court to the extent as indicated above. There shall however be no order as to cost. Narayan (D. Dash), Judge. Page 14 of 14