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Judgment
N. Ananda
CRP 308/2012 is filed against the dismissal of application filed under Order 7 Rule 11(a) CPC. CRP 309/2012 is filed against dismissal of application filed under Order 7 Rule 11(d) CPC. The learned'' trial judge has rejected the applications. Therefore, the defendants are before this court. I have heard Sri. C.S. Prasanna Kumar, learned counsel for petitioners/defendants and Sri. Ashok Haranahalli, learned Senior Counsel for first respondent/plaintiff.
The brief facts necessary for disposal of these petitions are as follows:
The plaintiff has filed O.S. No. 25422/2011 seeking following reliefs:
a) To declare that the plaintiff is entitled to 11 sites free of cost from the 1st defendant;
b) For mandatory injunction, directing the defendants to give the sites to the plaintiff and to execute necessary documents and put the plaintiff into possession of sites;
c) For costs and such other relief''s as this Hon''ble court deems fit in the facts and circumstances of the case, in the interest of justice and equity.
The plaintiff had filed I.A No 2 and 3 for grant of temporary injunction and they were dismissed by the trial court. Therefore, the plaintiff was before this court in MFA No. 9684/2011 and MFA 9685/2011. This court by judgment dated 28.11.2011 accepted the appeals and granted temporary injunction as prayed for in I.A. No. 2 and 3 in O.S. No. 25422/2011. Therefore, the defendant were before the Supreme Court in SLP (Civil) 34844-34845/2011. On 15.12.2011 Special leave petitions were dismissed by the Supreme Court.
On 02.01.2012, the first defendant filed two applications one under Order 7 Rule 11(a) and another application under Order 7 Rule 11(d) CPC, for rejection of plaint interalia contending that plaint does not disclose cause of action and the suit is barred by limitation. The plaintiff filed objections.
On 29.02.2012, plaintiff had filed Misc. No. 157/2012 u/s 24 CPC, seeking transfer of O.S. No. 25422/2011. On 13.04.2012, the learned Principal City Civil Judge before whom Misc No. 157/2012 was filed dismissed the application. Thereafter, the plaintiff was before this court in W.P. Nos. 6926/2012 and 12892/2012 and they were dismissed by this court. The plaintiff challenged the orders made by this court in W.P. Nos. 6926/2012 and 12892/2012 before the Supreme Court in SLP (Civil) 15729/2012 c/w 16078-79/2012 on 11.05.2012. The Supreme Court dismissed the SLP however, with certain direction''s. On 30.06.2012, the learned trial judge dismissed the applications filed under Order 7 Rule 11(a) and (d) CPC.
Sri. Prasanna Kumar, learned counsel for defendants would submit that the plaint does not disclose cause of action and the suit for declaration is barred by time.
The learned counsel for defendants would submit that, in O.S. No. 25422/2011, plaintiff has sought for mandatory injunction to first defendant to transfer 11 sites free of cost in favour of plaintiff.
The learned counsel would submit that alleged oral agreement entered into between parties without consideration is void. The learned counsel would submit that as per averments of plaint, cause of action arose for the suit during 1982 and the suit should have been filed on the date when the cause of action and right to sue accrued for the first time. Therefore, the suit filed in the year 2011 is hopelessly barred by time.
The learned counsel for petitioners has relied on judgments reported in ILR 1989 KAR 993, AIR 2011 SC 3590, (1977) 4 SCC 467 and ILR 2008 KAR 3993.
Sri. Ashok Haranahalli, learned Senior counsel for plaintiff would submit that, the State Government had acquired 10 acres of land for the benefit of first defendant society. The first defendant society had agreed to give one site per every acre of land acquired as an incentive to land owners who had agreed for acquisition of land and compensation awarded thereon. Therefore, the submission of learned counsel for defendants that oral agreement without consideration cannot be enforced u/s 25 of the Contract Act cannot be accepted.
The learned Senior counsel placing reliance on the report submitted by I-defendant to the Registrar of Co-operative Societies would submit that I-defendant has categorically admitted that out of 290 sites as per the plan approved by the Bangalore Development Authority, 19 sites have been given to farmers/land owners at the scale of one site per acre. The learned Senior Counsel would submit that the defendants were called upon to submit their clarification for the objection raised in the audit report. It is stated by the defendants that as observed by the Auditor, defendants would prepare list of allottees.
The learned Senior Counsel would submit that contrary to the report submitted by I-defendant to the Registrar of Co-operative Societies for the year 2007-08 on 31.03.2009 the aforestated 19 sites were allotted to the kith and kin of 4th defendant. Therefore, the oral agreement pleaded by the plaintiff is substantiated by the report submitted by the first defendant. The right to sue accrued for the first time when first defendant allotted sites to the kith and kin of 4th defendant contrary to the statement made in the report submitted to the Registrar of Co-operative Societies during the year 2009. Thus, suits filed in the year 2011 is within the period of limitation.
Before adverting to these submissions, it is necessary to state that the plaintiff was not successful in getting an order of temporary injunction before the trial court, the plaintiff was before this court in MFA No. 9685/2011 c/w 9684/2011. This court by judgment dated 28.11.2011 accepted MFA No. 9685/2011 c/w 9684/2011 and granted an order of temporary injunction as prayed for in I.A. No. 2 and I.A. No. 3 in O.S. No. 25422/2011.
In MFA No. 9685/2011 c/w 9684/2011, the learned counsel appearing for first defendant (first respondent in MFA 9685/2011 c/w 9684/2011) had raised the contention that in the absence of registered agreement in writing, the alleged oral agreement to transfer immovable property without consideration cannot be enforced. The learned counsel had also pressed into service Section 25 of the Contract Act. This court by taking into consideration the records submitted by the first defendant to the Registrar of Co-operative Societies has negatived this contention. In MFA Nos. 9685/2011 c/w 9684/2011 the learned counsel for defendants had also raised the question of limitation.
This court in MFA Nos. 9685/2011 c/w 9684/2011 dated 28.11.2011 has held:
Whether the limitation commences from the year 1982 or from the date of knowledge is yet to be ascertained in the context of various documents as noted in the compilation which depict that there was commitment and obligation as a matter of contract on the part of defendants and they are shown to have committed beach of contract. There is prima-facie case for the appellant.
The first defendant had challenged the order made by this court in MFA Nos. 9685/2011 c/w 9684/2011 before the Supreme Court in SLP (Civil) 34844-34845/2011 on 15.12.2011. On 15.12.2011 the Supreme Court dismissed SLP (Civil) 34844-34845/2011 in terms of following Order:
These petitions are directed against the order dated 28.11.2011 of the learned single judge of the Karnataka High Court whereby he allowed the Miscellaneous First Appeals 9684 and 9685 of 2011 appeal filed by respondent and granted injunction in terms of the prayer made in IA''s 2 and 3 in O.S. 25422/2011.
We have heard Shri. S.N. Bhat, learned counsel for the petitioners and carefully perused the orders passed by the trial court and the High Court along with other records. In our view, the injunction granted by the High Court is based on correct evaluation of the facts of the case and application of the recognised parameters and the impugned order does not call for interference under Article 136 of the Constitution of India.
The special leave petitions are accordingly dismissed.
It is made clear that it will be open to the petitioners to make an application before the trial court for expeditious disposal of the suit and we hope that the respondent will co-operate in early disposal of the case.
Thus, it is clear that the contentions raised by first defendant under Order 7 Rule 1(a) and (d) regarding question of limitation and absence of cause of action and bar to enforce oral agreement u/s 25 of the Contract Act were considered and rejected by this court in MFA No. 9685/2011 c/w 9684/2011. The judgment made by this court in MFA No. 9685/2011 c/w 9684/2011 has been confirmed by the Supreme Court in terms of aforestated order.
In the circumstances, the first point for consideration is whether the first defendant having raised the aforestated contentions before this court in MFA No. 9685/2011 c/w 9684/201.1 and having failed to substantiate the same can reagitate the same contentions for rejection of plaint by invoking provisions of Order 7 Rule 11(a) and (d) CPC.
In order to answer this point, it will be useful to refer to the following judgments:
In a judgment reported in Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, the Supreme Court has held:
The principle of resjudicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.
In a judgment reported in Arjun Singh Vs. Mohindra Kumar and Others, the Supreme Court has held:
Scope of the principle of resjudicata is not confined to what is contained in S. 11 but is of more general application.
In view of the findings of this court in MFA Nos. 9685/2011 c/w 9684/2011 confirmed by the Supreme Court in SLP (Civil) 34844-34845/2011 the defendant cannot set back the clock to contend that plaint averments do not disclose cause of action, the suit is barred by limitation and hit by Section 25 of the Contract Act.
The next point for determination is whether the trial court was justified in rejected the applications filed under Order 7 Rule 11(a) and 7 Rule 11(d) CPC.
On careful consideration of plaint averments, I find that, after ten acres of land held by the deceased father of plaintiff was acquired by the State Government in favour of first defendant society, the first defendant society had agreed to give one site per one acre as an incentive to land owners for consenting for acquisition of land and compensation awarded thereon. It is also seen from plaint averments and document relied upon by plaintiff that even before land acquisition proceedings were initiated there was a written agreement between the deceased father of plaintiff and first defendant. In fact, the 4th defendant had obtained deed of power of attorney from the deceased father of plaintiff, who was the land owner at the relevant time. The 4th defendant in dual capacity as a representative of I-defendant and power of attorney holder of the deceased father of plaintiff (land owner) had appeared before the land acquisition officer and had given consent not only for acquisition of land but also for determination of compensation. Apart from this, the first defendant in the report submitted to Registrar of Co-operative Societies has clearly stated that 19 sites have been given to the land owners at the scale of one site per one acre and when the clarifications were sought the first defendant had submitted that list of allottees/erstwhile land owners will be prepared and submitted to the Registrar of Cooperative Societies.
It is relevant to state that this report was submitted for the year 2007-08. The question whether 19 farmers/erstwhile land owners referred to in the report submitted by the first defendant to the Registrar of Co-operative Societies include the instant plaintiff or not is a matter for consideration during trial. Therefore, first defendant cannot contend that there is no cause of action for the suit.
As already stated, it is the case of plaintiff that before the land was acquired, first defendant had assured the deceased father of plaintiff to give one site per acre as an incentive for giving consent for acquisition of land and compensation awarded thereon. Therefore, at this stage, it is not possible to hold that oral agreement pleaded by plaintiff is without consideration.
The learned trial judge has dismissed the applications assigning some other reasons. Therefore, in addition to the reasons assigned by the learned trial judge I have assigned the aforestated at the reasons to confirm the impugned order.
It is noticed from the averments of plaint that plaintiff is seeking relief of specific performance in relation to 11 sites however, the relief is moulded in the form of mandatory injunction obviously to avoid payment of appropriate court fee. If the valuation for the purpose of court fee furnished by the plaintiff is not in accordance with law, defendants are at liberty to raise this question before the trial court.
In the result, I pass the following:
ORDER
The petitions are dismissed with aforestated observations.