JYOTIBA Vs. J.R. SHANMUKHAPPA

JUDGEMENT

(1.) THE 1st defendant filed the above two writ petitions against the order dated 2.01.2015 passed on I.A. Nos. 5 and 6 in O.S. No. 55/2011 dismissing the application filed under Section 34 of the Stamp Act and the application filed under Order 14 Rule 5 r/w 151 of Code of Civil Procedure.

(2.) THE respondent who is the plaintiff before the Trial Court filed O.S. No. 55/2011 for specific performance of contract to enforce the agreement dated 1.3.2010 alleged to have been executed by defendant Nos. 1 to 3 contending that defendant Nos. 1 to 3 are the members of Joint Family and defendant No. 1 is the Manager of the joint family properties and all the defendants have executed the agreement of sale in favour of the plaintiff on 1.3.2010 for sale consideration of Rs. 63,75,000/ - and they have received Earnest Money/Advance of Rs. 16,00,000/ - as on the date of execution of the agreement with certain conditions and in spite of repeated requests they are not executing the sale deed. Therefore, the plaintiff filed the suit. The 1st defendant filed written statement and other defendants adopted the same and the defendants denied the entire plaint averments and contended that the very suit filed by the plaintiff is not maintainable under Order 2 Rule 2 of Code of Civil Procedure. The plaintiff has filed the suit for injunction against the defendant in O.S. No. 36/2011 is pending for adjudication between the parties and also contended that the defendants entered into agreement with the plaintiff on 1.3.2010. As per the terms of the agreement of sale, the plaintiff ought to have paid remaining sale consideration amount within 30.04.2010 and get the sale deed registered, failing which, the defendants have every right to alienate the property to others, therefore contended the plaintiffs are not entitled for any relief and hence, sought for dismissal of the suit. After completion of plaintiffs evidence the matter was posted for defendants evidence. At that stage, the 1st defendant filed an application I.A.5 under Section 34 of the Karnataka Stamp Act requesting the Court to impound Ex. P1 Agreement of Sale contending that the District Registrar without any authority after expiry of one month collected the amount of Rs. 16,000/ - which is illegal and District Registrar has no power to collected the proper stamp duty etc. He has also filed another application I.A.6 under Order XIV Rule 5 r/w Section 151 of CPC requesting the Court to frame additional issues and modify issue No. 3 contending that the plaintiffs specifically contended in the plaint at paragraph 8 that as per the agreement of sale, the defendants got measured the property and fixed the boundary in the presence of the plaintiff before 10.04.2010. Therefore, the Court had to frame the issue and shift the burden on the plaintiff Therefore has prayed for allowing the applications.

(3.) AFTER hearing both the parties, the learned Addl. Senior Civil Judge passed separate impugned order dated 2.1.2015 and has dismissed I.A. Nos. 5 and 6. Hence the present writ petitions are filed.