R.S. Mahesh vs Devaraj

A.V. Chandrashekara, J.—Heard the learned counsel for appellant in regard to the admission. Perused the order dated 9.1.2015 passed in O.S. No. 27342/2012 on I.A. filed under Order XXXIX Rules 1 and 2 of C.P.C.

The appellant is the plaintiff in the said suit. Admittedly, the said suit is filed for specific performance of the agreement of sale stated to have executed by defendant on 11.4.2011 agreeing to sell the suit schedule property to the plaintiff for a total consideration of Rs. 12 lakhs. It is the case of the plaintiff that the defendant has received a sum of Rs. 3,50,000/- as advance on 11.4.2011 and has executed agreement of sale and he has agreed to execute a regular sale deed after receiving the balance sale consideration. In spite of his readiness and willingness, defendant did not come forward to execute the regular sale deed. As such, plaintiff was constrained to file suit for specific performance.

Per contra, defendant has filed a detailed written statement denying execution of agreement to sell and has stated the agreement of sale is a concocted document. He has denied the very readiness and willingness afforded by the plaintiff and the suit itself is stated to be not maintainable and he has requested to dismiss the suit.

After going through the records and pleadings of the respective parties, the learned Judge has held that the plaintiff has not made out the existence of a prima facie case in order to investigate into other points in an application filed under Order XXXIX Rules 1 and 2 of C.P.C.

Sri R.B. Sadasivappa, learned counsel appearing for the appellant has vehemently argued that the learned Judge, while analyzing the pleadings and the documents filed by the parties, has observed that the case of the plaintiff is false. It is argued that the Judge could not have been made such an observation, when trial has not yet commenced and the arguments have not been advanced on merits. There is a lot of force in the said submission made by the learned counsel for the appellant.

The scenario under which the learned Judge has made such observation has to be looked into. In the plaint, the plaintiff has made a categorically averment that the defendant owed a sum of Rs. 3,50,000/- to him and the said sum of Rs. 3,50,000/- is the earnest money found in the agreement of sale. Per contra, in the agreement of sale, there is no reference about the money being owed by the plaintiff to the defendant. Taking this glaring inconsistency into consideration, the learned Judge has come to the conclusion that the case is false. The learned Judge should have expressed his opinion with the following words

"The case of the plaintiff appears to be false." Instead of making such an observation, the learned Judge has come to a conclusion that the case is false. Whatever observation is made in the order passed on the application is for limited purpose of disposing of I.A. What is further argued by the learned counsel for the appellant is that the defendant cannot claim any equity in the event of plaintiff succeeding in the suit. It need not be reiterated that parties are bound by the ultimate result in the suit. With this observation, the appeal will have to be dismissed, as unfit for admission.

ORDER

Appeal is dismissed as unfit for Admission.

There is no order as to costs.