2006 Supreme(Kar) 265

Karnataka High Court
MANASA HOUSING CO-OPERATIVE SOCIETY LIMITED, SARASWATHIPURAM, MYSORE - Appellant
Versus
MARIKELLAIAH - Respondent
Decided On : 03-20-06
Regular First Appeal No. 180 of 2002.

Headnote:Civil Procedure Code

       Appellate Court - Powers of - Stated. [S.R.Bannurmath and Subhash B. Adi JJ.]: The Appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Settled principles : "If the Appellate Court reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the appellant, it is found necessary to grant relief to a person who has not appealed, the power under Order 41 Rule 33 may properly be invoked. No unrestricted right, however, is conferred by the rule to reopen the decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from" (AIR 1965 SC 1874).

       Cases Referred: 1998 (5) SCC 381; AIR 1968 SC 1413; AIR 1965 SC 1874; AIR 1999 SC 3571; 1971 (2) Mys. L.J. 168; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; ILR 1992 KAR 717; 1994 (2) SCC 558; ILR 1992 KAR 1421; AIR 1999 SC 3571; AIR 1965 SC 1874; AIR 1963 SC 1516; 1994 (2) SCC 558; AIR 1986 SC 1912; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; Relied: ILR 2005 KAR 5692; 2001 (6) Scale 226; ILR 1973 KAR 211; (1998) 5 SCC 381.

       Civil Procedure Code - Order 41, Rules 22 & 33 - Appellate Court - Powers of - Stated. [S.R.Bannurmath and Subhash B. Adi JJ.]: The Appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Settled principles : "If the Appellate Court reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the appealant, it is found necessary to grant relief to a person who has not appealed, the power under Order 41 Rule 33 may properly be invoked. No unrestricted right, however, is conferred by the rule to reopen the decrees which have become final merely because the appellate Court does not agree with the opinion of the court appealed from" (Air 1965 Sc 1874).

       Cases Referred: 1998 (5) SCC 381; AIR 1968 SC 1413; AIR 1965 SC 1874; AIR 1999 SC 3571; 1971 (2) Mys. L.J. 168; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; ILR 1992 KAR 717; 1994 (2) SCC 558; ILR 1992 KAR 1421; AIR 1999 SC 3571; AIR 1965 SC 1874; AIR 1963 SC 1516; 1994 (2) SCC 558; AIR 1986 SC 1912; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; Relied: ILR 2005 KAR 5692; 2001 (6) Scale 226; ILR 1973 KAR 211; (1998) 5 SCC 381.

       Karnataka Land Reforms Act - Section 132 - Contravention of Sections 7A-B and 80 and of Act - Jurisdiction of Civil Court to deal with. [S. R.Bannurmath and Subhash B. Adi JJ]: By regarding of the provisions of Section 132, it makes it clear that it is not for the Civil Court to decide as to whether there is a contravention of the provisions of Sections 79B or 80 of the Act, when such a power is conferred exclusively on the authority prescribed under Section 83. Civil Court cannot decide whether the transaction is void or not. From this judgement, it clearly follows that the Civil Court while granting decree for specific performance, is not vested with the jurisdiction to decide whether the transaction is in violation of the provisions of the karnataka Land Reforms Act or not.

       Cases Referred: 1998 (5) SCC 381; AIR 1968 SC 1413; AIR 1965 SC 1874; AIR 1999 SC 3571; 1971 (2) Mys. L.J. 168; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; ILR 1992 KAR 717; 1994 (2) SCC 558; ILR 1992 KAR 1421; AIR 1999 SC 3571; AIR 1965 SC 1874; AIR 1963 SC 1516; 1994 (2) SCC 558; AIR 1986 SC 1912; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; Relied: ILR 2005 KAR 5692; 2001 (6) Scale 226; ILR 1973 KAR 211; (1998) 5 SCC 381.

       Karnataka Land Reforms Act - Sections 79-B & 80 - Bar erected under - Scope of. [S. R.Bannurmath and Subhash B. Adi JJ]: Section 79B bars for holding an agricultural land by a person who is not an agriculturist personally cultivating the land. Similarly, Section 80 also bears transfer of agricultural land in favour of a person who is not an agriculturist or agricultural labourer or for non-agricultural purpose. However, the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner is authorised by the State Government in this behalf in respect of any area may grant permission for such sale, gift or exchange, (to enable a person other than a person disentitled to acquire or hold the land under Section 79A or Section 79(B) who bona-fide intend of taking up agriculture to acquire land on such conditions enumerated therein. It is true that Section 80 bars the sale, gift or exchange or lease of any land to a person who is not an agriculturist and it also bars for transfer of such lands for non-agricultural purpose. What is contemplated under Section 80 is a prohibition of sale, gift, exchange or lease or interest therein on the agricultural land in favour of non-agriculturist. Admittedly, the suit is one for specific performance of the contract. There is no concluded contract between the parties nor is there any transfer of agricultural land either by sale, gift, exchange or lease or there is any transfer of interest therein. The violation contemplated under Section 80 of the Act arises only when the actual transfer takes place and not otherwise. By mere filing of suit for specific performance of the contract or the decree by itself does not amount to violation of Section 80 of the Act.

       Specific Relief Act - Section 16(c) - Specific performance - Burden on plaintiff. [S. R.Bannurmath and Subhash B. Adi JJ]: Section 16(c) of the Specific Relief Act, 1963 requires the party seeking the Specific performance of the Act to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms, the performance of which has been prevented by the defendant. From the provisions of Section 16(c) of the Specific Relief Act, it is clear that the plaintiff is required not only to plead, but he also required to prove that he is always ready and willing to perform his part of the contract. It is also necessary that the plaintiff not only he makes hallow pleading but also essentially he is required to prove by leading evidence. The readiness under Section 16(c) means the financial capacity of the plaintiff to perform his part of the contract to pay the sale consideration amount. The willingness under Section 16(c) is that his mental attitude, that he is always ready and prepared to perform his part of the contract.

       Specific Relief Act - Section 20 - Pleadings - Variance in - if can be inferred. [S. R.Bannurmath and Subhash B. Adi JJ]: In this case as far as the pleadings are concerned they are clear and certain. It is the defendants case that the plaintiff had entered into an agreement on 18.09.1993 and time to complete the sale transaction was fixed at six months. However the time was extended by another three months when further advance was paid. We are of the view that this extension of time would not in any way alter the contract or amounts to variation in the pleadings or the proof of the contract. As far as Ex.Ps D 1 and 2 are concerned the plaintiffs have neither altered the contract nor changed the nature of the contract nor there is any alteration in the pleadings or the evidence. It is out of gesture and goodwill, the plaintiff, who expressed that they would pay another sum of Rs. 3,50,000/- if the defendants executed the sale deed immediately. This by itself will not amounts to alteration of contract. The judgement relied upon by the learned counsel for the respondents is not applicable to the facts and circumstances of the case, particularly when both the parties have understood the terms of the contract and the defendants have not disputed the agreement and receipt of Rs.40,000/- under Ex.P2 and extension of time. In fact the offer of payment of additional sum of Rs.3,50,000/- or extension of time by three months does not in any way has prejudiced the defendants. As such in our opinion the evidence on record clearly shows that the terms of the agreement are clear, understandable, and there is no uncertainty in the same. Further in the evidence led by the plaintiff we do not find any variance as against the pleadings. Apart from this, it is to be noticed that the defendants have not stepped into the witness box to deny the said allegation. In the light of this, there is no merit in the contentions of the learned counsel for the respondents that there is variance in the pleadings and evidence and it alters the contract.

       Specific Relief Act - Section 20 - Pleadings - Variance in - if can be inferred. [S. R.Bannurmath and Subhash B. Adi JJ]: In this case as far as the pleadings are concerned they are clear and certain. It is the defendans case that the plainiff had entered into an agreement on 18.09.1993 and time to complete the sale transaction was fixed at six months. However the time was extended by another three months when further advance was paid. We are of the view that this extension of time would not in any way alter the contract or amounts to variation in the pleadings or the proof of the contract. As far as Ex.Ps D 1 and 2 are concerned the plaintiffs have neigher alter the contract nor changed the nature of the contract nor there is any alteration in the pleadings or the evidence. It is out of gesture and goodwill, the plainiff, who expressed that they would pay another sum of Rs. 3,50,000/- if the defendants executed the sale deed immediately. This by itself will not amounts to alteration of contract. The judgement relied upon by the learned counsel for the respondents is not applicable to the facts and circumstances of the case, particularly when both the parties have understood the terms of the contract and the defendants have not disputed the agreement and receipt of Rs.40,000/- under Ex.P2 and extension of time. In fact the offer of payment of additional sum of Rs.3,50,000/- or extension of time by three months does not in any way has prejudiced the defendants. As such in our opinion the evidence on record clearly shows that the terms of the agreement are clear, understandable, and there is no uncertainity in the same. Further in the evidence led by the plaintiff we do not find any variance as against the pleadings. Apart from this, it is to be noticed that the defendants have not stepped into the witness box to deny the said allegation. In the light of this, there is no merit in the contentions of the learned counsel for the respondents that there is variance in the pleadings and evidence and it alters the contract.

       Cases Referred: 1998 (5) SCC 381; AIR 1968 SC 1413; AIR 1965 SC 1874; AIR 1999 SC 3571; 1971 (2) Mys. L.J. 168; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; ILR 1992 KAR 717; 1994 (2) SCC 558; ILR 1992 KAR 1421; AIR 1999 SC 3571; AIR 1965 SC 1874; AIR 1963 SC 1516; 1994 (2) SCC 558; AIR 1986 SC 1912; ILR 1977 KAR 676; 1987 (1) Kar. L.J. 16; Relied: ILR 2005 KAR 5692; 2001 (6) Scale 226; ILR 1973 KAR 211; (1998) 5 SCC 381.

       Specific Relief Act, 1963 - Section 16 (C) - Burden on plaintiff - Suit for specific performance of contract - Plaintiff to plead and prove that he has performed his part of contract or that he was always been ready and willing to perform his part of contract. [S.R. Bannurmath and Subhash B. Adi J] : It is true that Section 80 bars the sale, gift or exchange or lease of any land to a person who is not an agriculturist and it also bars for transfer of such lands for non-agricultural purposes. What is contemplated on Section 80 is a prohibition of sale, gift, exchange or lease or interest therein on the agricultural land in favour of non-agriculturist. Admittedly, the suit is one for specific performances of the contract, there is no concluded contract between the parties non is there any transfer of agricultural land either by sale, gift, exchange or lease or there is any transfer of interest therein. The violation contemplated under Section 80 of the Act arises only when the actual transfer takes place and not otherwise by mere filing of suit for specific performance of the contract or the decree by itself does not amount to violation of Section 80 of the Act. It is not for the Civil Court to decide as to whether there is a contravention of the provisions of Section 79(b) or 80 of the Act, when such a power is conferred exclusively on the authority prescribed under Section 83. In respect of any allegation or illegality or legality of the transaction as to be done by the specific statutory authority described under the Act and such an enquiry cannot be held by the civil court much less before the contract is concluded by execution of the sale deed. The counsel appearing for the Appellant submitted that the plaintiff appellant has made an application before the competent authority seeking necessary permission for holding the agricultural land.

       Cases Referred : AIR 1998 SC 2216 : (1998)5 SCC 381; AIR 1968 SC 1413; AIR 1965 SC 1874; AIR 1999 SC 3571 : (1999)7 SCC 435; 1971(2) Mys. L.J. 168; AIR 2001 Guj. 90; ILR 2005 Kar 5692 : 2006(1) AIR Kar R 212; 2001(6) Scale226; ILR 1973 Kar 211; 1977(1) Kar L.J.300 : ILR 1977 Kar 676; 1987(1) Kar L.J. 16 (DB); ILR 1992 Kar 717 (DB) (1994)2 SCC 558; 1992(2) Kar L.J. 196 (DB); AIR 1963 SC 1516; AIR 1986 SC 1912 : (1986)3 SCC 300.