ARUN KUMAR Vs. N. NIRMALA DEVI

JUDGEMENT

(1.) THE plaintiff -writ petitioner has filed this appeal challenging the judgment dated 7.1.2013 passed by the learned Single Judge in W.P.(C) No. 11696 of 2013 dismissing the same on the ground of maintainability stating inter alia that order of rejection of a plaint being a decree, as defined under Section 2(2) of the Code of Civil Procedure, the same is appealable.

(2.) THE pleaded facts as available on record indicate that the writ petitioner -appellant entered into an agreement for sale of a piece of land with one Niku Purna Chandra on 17.02.2000 whereunder said Niku Purna Chandra agreed to sell the piece of land measuring Ac. 1.00 bearing Plot No. 75/1 and 75/1/270 situated in village Khalliguda, Rayagada, covered by registered sale deed Nos. 1113/81, 1174/81, 1175/81 and 807/82, on payment of consideration of Rs. 18,00,000/ -. As per the terms of agreement, said Niku Purna Chandra was to receive a sum of Rs. 1,72,000/ - at the time of agreement, a sum of Rs. 1,00,000/ - by 02.04.2000 and to receive the balance sale consideration within one year of the agreement subject to condition that he had no encumbrances over the property in question and had to show his clear title over the property free from all debts, if any, over the same and to make the property free from all encumbrances. The said Purna Chandra as a part of the sale consideration, received a sum of Rs. 1,22,000/ - on the date of agreement, i.e. 17.03.2000, Rs. 90,00,000/ - on 20.03.2000 and Rs. 60,000/ - on 04.04.2000 thereby he has received a total sum of Rs. 2,72,000/ -. Unfortunately, the vendor, Niku Purna Chandra could not comply his part of the agreement by providing the title deeds. On the other hand, he suppressed the fact that the title deeds were mortgaged with the State Bank of India and he had availed a loan by that. Since no title deeds were produced, in spite of repeated demands, the petitioner had to issue a notice on 22.03.2001 through advocate questioning his conduct of concealment of facts, deception and suppression of the fact of taking loan on the documents from the Bank. Therefore, the appellant instituted a criminal case for cheating and as per the terms of the agreement, the matter was required to be referred to arbitration in the event of dispute between the parties in connection with the sale transaction and accordingly, the matter was referred to arbitration to be adjudicated by an arbitrator, but the same having not progressed, the writ petitioner filed a Title Suit bearing No. 06/2004 in the court of learned Civil Judge (Sr. Division), Rayagada seeking direction to the Arbitrator for expedite disposal of the proceedings and alternatively for a decree for specific performance of contract besides other reliefs. The suit was initially filed against Niku Purna Chandra and on his death, respondent Nos. 1 to 4 were substituted in his place as legal heirs and representatives but there was no averment about the reference of the dispute to arbitration. The suit was registered as T.S. 26/2003. Before the suit was admitted the same was withdrawn with the permission to file a fresh suit on the selfsame cause of action and thereafter T.S. 06/2004 was filed. To that extent, an averment was also made in the plaint in Para -24.

(3.) RESPONDENT Nos. 1 and 2 filed an application under Order -18 Rule - 17 C.P.C. stating inter alia that they were employees in USA and were staying in USA. They came back to India on 24.06.2007 and had also to go back on 09.07.2007 to USA and prayed for recording their deposition before the actual hearing. The appellant filed objection to the said petition under Order -18 Rule - 17 C.P.C. contending that the petition was not maintainable as no suit was pending for recording such evidence thereby provisions of Order -18, Rule -17 C.P.C. could not be taken resort to. But the learned Civil Judge without appreciation the matter in proper perspective simply passed an order on 11.07.2007 permitting the witnesses to be examined holding that records were not necessary as the hearing was not going to be closed.