T RAMACHANDRAIAH Vs. G NAGAPPANAIDU

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 of 1981. 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 usual 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 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.) At the commencement of the hearing, Mr. Bhat, the appellant's learned Advocate requested the Court to pass orders on LA. III whereby it was his desire that the evidence in relation to the original order of allocation of the house to the appellant should be permitted to be led and he also desired that prior to this, amendment be carried out in the written statement. Mr. Bhat pointed out that he is conscious of the stage at which he is making the application, that he is aware of the fact that normally, it would be impossible to permit an amendment to a written statement, or additional evidence at this point of time, long after the suit has been decreed and the appeal has come up for final hearing; but that this is one of the unusual cases whereby a total failure of justice would result if this procedure were not to be permitted. For this purpose, I heard learned counsel at some length and perused the record of this case.