The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.241 of 2008 In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Ad hoc Additional District Judge, FTC No.II, Cuttack in T.A. No.99 of 2003 setting aside the judgment & decree dated 16.11.2002 and 27.11.2002 respectively passed by the learned 1st Additional Civil Judge, Senior Division, Cuttack in T.S. No.251 of 1990. ---- Nirmala Mohapatra …. Appellant -versus- M/s.Eastern Estate Private Limited and Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.A.K. Mishra-2 (Senior Advocate) For Respondents - Mr.D.P. Mohanty (Advocate for R.1) CORAM: MR. JUSTICE D.DASH Date of Hearing : 31.01.2023 : Date of Judgment:28.02.2023 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree passed by the learned Ad hoc Additional District Judge, FTC No.II, Cuttack in T.A. No.99 of 2003. The present Respondents 1 and 2, as the Plaintiffs, had filed T.S. No.251 of 1990 in the Court of the learned 1st Additional Civil Judge, RSA No.241 of 2008 Page 1 of 6 {{ 2 }} Senior Division, Cuttack arraigning one Dhurba Charan Routray and his three sons, i.e., Respondents 7, 8 and 9 as the Defendants. Dhurba having died during pendency of the suit over and above his three sons, i.e, Respondents 7, 8 & 9 (Defendnats 2, 3 & 4), his four daughters have come on record. The said suit was decreed ex parte due to the failure on the part of the Defendants to come forward and contest the same. The Respondent No.1, having claimed the decree for specific performance of contract to direct the Defendants to execute and register the sale deed in respect of the property covered under the agreement for sale, which had been executed by Respondent Nos.7, 8 & 9 and their father, the original Defendant No.1 under Ext.1 on receipt of the balance consideration, the Trial Court had decreed the suit by directing the Appellant and Respondents 2 to 9 to pay a sum of Rs.40,000/- to the Respondent No.1 (Plaintiff) in refusing to grant the relief of specific performance of the agreement. The respondent No.1 then being aggrieved by the said ex parte judgment and decree, having carried the Appeal under section 96 of the Code, the First Appellate Court has directed the Appellant and Respondent Nos.2 to 9 to execute and register the sale deed in respect of the suit land in favour of the Plaintiffs on receiving the balance consideration. Hence, the Appellant, being the aggrieved Defendant No.1(d) has filed this Second Appeal. 2. 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 Trial Court. 3. The Plaintiffs’ case is that the Defendants, i.e., Dhurba Charan Routray and his three sons, having agreed to sell the suit land to the Plaintiffs, had executed an agreement for sale on 11.04.1987. The RSA No.241 of 2008 Page 2 of 6 {{ 3 }} consideration was agreed and fixed at Rs.79,000/- for sale of Ac.0.79 decimals of land. It is stated that the Defendants on that day had received a sum of Rs.10,000/- as advance. They then had agreed to obtain the permission from the Authority as provided in Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 and execute the registered sale deed in respect of the suit land in favour of the Plaintiffs after receiving the balance consideration. It is further stated that on 30.04.1987, the Defendants again received a sum of Rs.30,000/- and executed a receipt. The Defendants thus in total received Rs.40,000/-, were to get Rs.39,000/- more towards consideration for sale of the land. The Defendants when were called to execute and register the sale deed in favour of the Plaintiff by issuing a notice to that effect, they did not do so. It is stated that the Plaintiffs have been all along ready and willing to perform it part of the contract. 4. The Trial Court, having heard the matter ex parte, instead of directing the Defendants to execute and register the sale deed in respect of the land covered under the agreement for sale (Ext.1), directed the Defendants to pay a sum of Rs.40,000/- to the Plaintiffs with interest @ 10% per annum with effect from 01.05.1987 till payment. The Plaintiffs being aggrieved by the said order, having carried the First Appeal, the same has been allowed and thereby the Defendants have been directed to execute and register the sale deed in respect of the suit land on receipt of balance consideration from the Plaintiffs within the time stipulated. 5. The Appeal has been admitted on the following substantial question of law:- RSA No.241 of 2008 Page 3 of 6 {{ 4 }} “Whether on the facts and circumstances which have emerged from the pleadings and the evidence, the First Appellate Court is right in decreeing the suit directing this Defendant with other Defendant No1(a) to 1(c) also to execute the sale-deed in view of the failure to perform their part of the agreement to which is neither a party nor a signatory and when also that any other it member/members of the family of this Defendant and parties to the agreement had the authority in the eye of law to represent the estate of this Defendant”? is said 6. Learned counsel for the Appellant submitted that one Bichitrananda Pradhan, who died leaving three sons and four daughters and who were then having the right over the property in question, were not parties to the said agreement for sale and, therefore, the decree for specific performance of contract for the sale of the land where these Defendants 1(a) to 1(e) had their interest could not have been passed. He further submitted that there being two agreements; as per the Plaintiffs’ case, after the second agreement, the first one has no significance and, therefore, the suit claiming the relief based on the first agreement for sale ought not to have been decreed. 7. Learned counsel for the Respondents, on the other hand, submitted that the Courts below, having concurrently found that there was execution of agreement for sale and the evidence, being there from the side of the Plaintiff that they were ready and willing to perform their part of the contract, which has gone unchallenged as the Defendants were set ex parte, the suit has been rightly decreed. Accordingly, the First Appellate Court is right in granting the relief of specific of specific performance of contract by setting aside the decree of the Trial Court, which was confined to the refund of consideration only. RSA No.241 of 2008 Page 4 of 6 {{ 5 }} 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 9. The Plaintiffs have proved the first agreement for sale which has been admitted in evidence and marked Ext.1. It has been stated that the same has been executed by the deceased-Defendant No.1 and his sons Defendant Nos.2 to 4. This agreement being dated 11.04.1987, it is the further case of the Defendants that they on 30.04.1987 (Ext.2) had executed another agreement for sale of the suit land. The first agreement for sale was for an agreed consideration of Rs.79,000/- whereas the second agreement for sale for the same land is said to be for an agreed consideration of Rs.30,000/-. When it is said that towards the first agreement for sale, a sum of Rs.10,000/- had been paid in advance, it is again stated that in the second agreement, there was payment of consideration of advance of Rs.30,000/-. It is interesting to note that the Plaintiffs had prayed in the plaint for a direction for execution of the contract for sale of Schedule-A land which is the suit land seeking direction to the Defendants to execute and register the sale deed in respect of the same on receiving balance consideration of Rs.39,000/-. It having been pleaded that in both the agreement, there was a payment of total sum of Rs.40,000/- towards the advance consideration from out of the total consideration of Rs.79,000/-, further consideration of Rs.39,000/- was to be paid. The prayer is to direct the Defendants to receive Rs.39,000/- as consideration and execute the sale deed and the alternative prayer is to direct the Defendants to pay a sum of Rs.54,400/- , which they had received. The pleadings and the prayers run contrary. Even it is not shown that the Defendants were having title over the property as also the fact has not been proved that the predecessors-in- interest of these Defendant Nos.1(a) to 1(e) was the executant of those Page 5 of 6 RSA No.241 of 2008 {{ 6 }} agreements for sale. With such wholly defective pleadings when the prayers do not appear to be in consonance with the same nor it is so ascertainable from the evidence let in by the parties, this Court finds all the justification to hold that the Plaintiffs are not entitled to the relief of specific performance of contract in directing the Defendants to execute the sale deed in respect of the suit land on receipt of consideration of Rs.39,000/-. However, it having not been denied by the Defendants 2 to 4 that they and their father had not received the advance consideration of Rs.40,000/-; the Plaintiffs’ entitlement to get the refund of said amount stands. The substantial question of law is answered accordingly. The Defendant Nos.2 to 4 are directed to pay a sum of Rs.40,000/- (Rupees Forty Thousand) with interest @ 10% per annum with effect from 01.05.1987 till payment. 10. Accordingly, the Appeal stands allowed to the extent as indicated above. There shall, however, be no order as to cost. (D. Dash), Judge. Basu RSA No.241 of 2008 Page 6 of 6