C N VITTAL RAO SECUNDERABAD Vs. SRIHARI HYDERABAD

JUDGEMENT

(1.) The judgment and decree of the learned Additional judge,City Civil Court, Hyderabad in O.S.No. 1391 of 1981, dated 22-1-1983 has been the subject of this appeal. The appellant is the defendant in O.S.No. 1391 of 1981. The respondent is the Plaintiff. The suit was filed for specific performance of the suit agreement, Ex. A-1, dated 14-1-1976 followed by another agreement, Ex. A-2, dated 12-7- 1976 or in the alternative for refund of Rs. 5,000/- with interestat 18 percent per annum from the date of receipt till payment, for costs, etc. The suit property is described in the Plaint Schedule as follows: "Plot No. 2 admeasuring about 350 sq. yards situated at Padmaraonagar, Secunderabad bounded by North: By Plot No. 1 belonging to C.N. Vittal Rao, South : Plot No. 3 belonging to C.N. Vittal Rao, By East: Land and Building belonging to C.P. Natrajan and By West: Proposed 30' road." Defendant is the owner of the suit property. He entered into an agreement with the Plaintiff to sell the suit plot of land at a rate of Rs. 60/- per Square Yard, received an advance of Rs. 5,000 / -, a greed to receive the bal ance of the amount on the date of registration and the sale transaction was to be completed within six months from the date of taking possession, which is mentioned in the second Agreement, Ex. A-2. It was also agreed that the Defendant should obtain the permission and exemption from the competent authority under the Urban Ceiling Act, 1976 (in short'the Act'). It appears that the Plaintiff had alsoapplied for such a permission. The Government granted exemption under G.O.Ms.No. 729, dated 4-5-1981 as per Ex. A-5. The Plaintiff pleaded that he was always ready and willing to perform his part of the contract but the Defendant did not oblige him. A notice was issued by the Plaintiff as per Ex. A-6, dated 2-6-1981 calling upon the Defendant to execute the registered Sale Deed as agreed to an receiving the balance of the sale consideration. It is alleged that the Defendant did not respond to the notice and therefore, the Plaintiff had to file the suit. The Defendant admitted the execution of the suit agreements and the terms therein, but he contended that the exemption granted to him under Ex. A-5 was conditional and the conditions imposed therein were oppressive and not acceptable to him and therefore, he has sought for review of the same. In order to get such an exemption he was to surrender the remaining portion of the excess land belonging to him. He also contended that the suit agreements were frustrated in view of the provisions of the Act and they were illegal, void and un-enforceable. He also pleaded hardship in case a decree of specific performance is being directed. He sought for the dismissal of the suit with costs, however, agreeing to refund Rs. 5,000/- to the plaintiff. Incidentally, he contended that under the circumstances stated above, the Plaintiff had agreed to receive back Rs. 5,000/- paid to the Defendant and therefore, there was novation of contract and even on that count, the two agreements were not enforceable. The following issues were settled by the trial Court:-

(2.) In this appeal, although several grounds were raised Mr. E. Monohar, learned Advocate for the appellant, who is the defendant in the suit, has raised specific contentions as part of grounds while challenging the decree of the trial Court viz., (1). The decree passed by the trial Court is not enforceable or executable in view of the suit agreements and the decree violating Section 5,10, 20 and 42 of the Act, (2). The suit agreements are void in view of Section 23 of the Indian Contract Act in view of the provisions of Urban Land Ceiling Act, 1976, (3). The exemption granted by the Government under Ex. A-5 is illegal, passed without jurisdiction by the Government and therefore, it is void ab initio. (4). The suit agreement have become frustrated in view of the provisions of the Urban Land Ceiling Act, 1976 and the decree passed by the trial Court becomes redundant and un-enforceable, (5). The decree of the trial Court is void ab initio in law by virtue of the provisions of the Urban Land Ceilings Act, 1976 and formarly this Court has to set aside the same and (6). The decree passed by the learned trial Judge cannot be thus sustained and the appeal deserves to be allowed.

(3.) Mr. Subba Reddy, learned Advocate for the respondent has repelled all the contentions of the appellant above and has stated his own contentions that the decree of the trial Court was totally justified both on facts and law. According to him, the respondent had no objection to execute the sale deed on any ground, except in regard to the market value etc. which has been categorically confirmed in his testimony and therefore, now it is not open to him to go back and challenge the decree on a technical ground of law, which according tohim is not correctly placed before the Court. It is contended by him that the law settled so far empowers the Court to pass a conditional decree for specific performance subject to the exemption to be obtained by the parties to the suit from the competentauthority or the Government under the Act. Even assuming that for any reason the suit agreements are invalid or void, etc. that shall not enure to the benefit of the appellant without seeking a declaration that they are void for any reason contravening the provisions of the Act and the concept of void or viodability for particular purpose may not be the same in regard to the consequences between the parties subject to the final result of the law. He has contended that the appellant himself has approached the Government for exemption and he is not against the exemption granted, but, he wants the exemption in regard to all the properties regarding which exemption has been declined and he is totally estopped from raising the contention that the exemption granted by the Government under Ex. A-5 i? inoperative or invalid just because it is conditional or restricted only to the extent of the property covered under the suit agreements. As a whole Mr. Subba Reddy has contended that the contentions of the appellant as above are motivated and of evasive conduct to avoid the suit agreements and the decree in question.