SUNIL KUMAR DR Vs. AMOLAKSINGH

JUDGEMENT

(1.) The revision petition and the appeal arise out of the order and decree dated 3-3-1988 passed in I.A. No.514/1985 in O.S. No.244/1982 and the eventual judgment and decree dated 28-3-1988 passed in O.S.No.244/1982 respectively by the Additional Chief Judge, City Civil Court, Hyderabad. As the parties are same and common questions of law and fact are involved in both the proceedings, both can be disposed of together.

(2.) For the sake of convenience and to avoid any confusion, it is expedient to refer the parties as arrayed in the suit. The 1st plaintiff filed the suit in O.S. No.244/1982 for specific performance of the agreement of sale dated 30-7-1977 and for directing the defendant to execute a registered sale deed in favour of the plaintiff conveying the property namely the land and building bearing Municipal No.3-6-364/1 to 364/6 and the land in an extent of 269-1 Sq. metres. It is the case of the plaintiffs inter alia in the plaint that the defendant is the owner of the property and entered into an agreement to sell on 30-7-1977, agreeing inter alia to sell the property described in the schedule annexed therewith, for a consideration of Rs.1,00,000/-. Pursuant to the terms of the agreement and in part performance thereof, an amount of Rs.25,000/- was paid under a cheque bearing No.C/17021851 dated 30-7-1977 by the 1st plaintiff to the defendant, which was enhanced (sic. encashed) by the defendant later. The balance amount of Rs.75,000/- was agreed to be paid on the date of registration of the sale deed before the registering authority. As the defendant or his father representing the defendant under a power of attorney failed to honour the terms of the agreement, the 1st plaintiff got a notice dated 30-9-1977 issued to the defendant calling him upon to comply with the terms of the agreement. In turn, the defendant got reply notices dated 20-10-1977 and 2-11-1977 issued to the plaintiff. The plaintiff got another notice dated 8-3-1978 issued to the defendant and thereupon laid the suit. The defendant resisted the suit by filing a written statement, mentioning inter alia that there was an agreement to sell the property for a consideration of Rs.2,25,000/- with a specific understanding that the sale deed would be executed for Rs.1,00,000/- after the plaintiff paying a sum of Rs.1,00,000/-, which was a condition precedent and as the 1st plaintiff failed to fulfill the said condition, the suit for specific performance must be dismissed.

(3.) While the matter stood thus, the 1st plaintiff died and plaintiff Nos.2 to 7 the legal representatives of the 1st plaintiff were brought on record. On account of the intervention of the elders and wellwishers of both the parties, the parties had agreed to compromise the suit and, the terms of the compromise were reduced into writing on 7-7-1985. Pursuant to the said compromise, the plaintiffs filed I.A. No.514/1985 under Order 23 Rule 3 of Civil Procedure Code (in short 'the Code'), seeking permission of the Court to record the agreement/compromise dated 7-7-1985, said to have been entered into by the parties and to dispose of the suit in terms thereof. The Memorandum of Compromise dated 7-7-1985 was annexed therewith. That application was resisted by the respondent-defendant by filing a counter mentioning inter alia that there was no complete and concluded compromise inter se between the parties and the Memorandum of Compromise dated 7-7-1985 was not signed by all the parties and that the plaintiffs should necessarily obtain the sanction for the construction of a multistoried complex and that while the matter stood thus, the Municipal Corporation of Hyderabad put forward a claim for widening the road by taking the huge portion of the suit property, thereby making it impossible for performance of the contract and, therefore, the contract was frustrated etc., were among the other pleas taken in the counter. No oral evidence had been adduced on either side, but Exs.A-1 and B-l were got marked on either side. Upon hearing both the sides and after considering both the documents, the trial Court allowed the application in I.A. No.514/1985 by its order dated 3-3-1988 and in sequel thereto, decreed the suit by its judgment dated 28-3-1988 passed in terms of the compromise. Challenging the same as aforesaid, the revision as well as the appeal have been filed.