RAMACHANDRAIAH Vs. NAGAPPA NAIDU

JUDGEMENT

(1.) HEARD learned Counsel for the appellant Respondent unrepresented and absent. 1(a). This Appeal has been preferred by the original defendant against a judgment of the City Civil Court at Bangalore in O.S. No. 3206/81. The present appellant who was the original defendant is an allottee in respect of the disputed premises which consists of a house property. That the house was allotted to him by the Housing Board in October 1965 is undisputed. The Lease cum Sale Agreement indicated that House No. 540(B), Hosalli, Bangalore was allotted to the appellant under the Low/Middle Income Group Housing Scheme is established. It is also necessary for me to take note of the fact that under Clause (3) of the Agreement, there is a total bar of alienation of the title and interest in the property to third parties save and except to certain specified institutions for purposes of obtaining a loan with the prior approval of the Housing Board. It appears that on 30.5.1980 the defendant entered into an Agreement with the plaintiff who was in occupation of the premises agreeing to sell the house in question to him for a price of Rs. 70,000/-. It is a unusual Agreement to Sell and as far as the consideration is concerned, it is very clearly laid down that the price shall not be varied regardless of market fluctuations. The plaintiff contended that the Agreement itself records a payment of Rs. 25,000/- having been made by him leaving a balance of Rs. 45,000/- outstanding. It is contended by the plaintiff that he had called upon the defendant to complete the transaction, that he was ready and willing to pay the balance consideration and that the defendant had refused to execute the sale deed. On this background, the plaintiff prayed for a decree of specific performance against the defendant.

(2.) THE learned trial Judge framed the necessary issues, recorded the evidence and after the hearing the parties accepted the validity of the Agreement and decreed the suit. THE defendant was directed to execute the sale deed on receipt of the balance amount of Rs. 45,000/- within a period of six months. It is this decree that has been appealed against. It is necessary for me to record at this stage that the plaintiff who is the respondent to this Appeal was earlier represented and after the illness and demise of his learned Advocate the Court issued notice to the respondent to remain present before this Court or to arrange for due representation. He has not done either of the two and consequently, I was required to scrutinise the record for purposes of ascertaining whatever may be stated on his behalf.

(3.) THE appellant's learned Counsel has pointed out to me that the Agreement of allotment is on record and that effectively it would mean an amplification of the evidence in respect of this Agreement for which, the aforesaid procedure might have been necessary. Normally, this Court would have had no option except to remand the matter for this purpose. Having regard to the time factor, and the additional aspect that all Courts are already heavily over-burdened and that it would virtually amount to a total waste of Judicial time to remand the proceedings merely for the sake of the aforesaid mechanical exercise, I have taken the view that while I.A. No. III is justified, that the same purpose can be achieved by taking cognizance of the Agreement which is already on record. I have taken Judicial note of the fact that the limited question relates to the introduction of a document executed by a public authority and that this Agreement cannot be disputed even if one has to go through the procedural formality of examination-in-chief and cross-examination. It is only a clause of this Agreement that is really material and nothing else. Under these circumstances, in view of the fact that a Court should as far as possible avoid a remand if that can be done, I am desisting from remanding the matter and hearing the Appeal on merits.