The respondent number1 preferred RFA number635 of 1996 in the High Court against the judgment and decree dated 30.9.1995 of the Addl.
The High Court allowed the appeal and set aside the judgment and decree of the Addl.
The trial companyrt decreed the suit for recovery of the amount on 24.7.1985.
The Addl.
The High Court has held that the companyrse adopted by the learned Addl.
City Civil Judge dismissed the suit by deciding issues number 3 and 4 and the application under section 10 CPC was number at all companysidered.
The amendment application was allowed and the respondent number1 was required to pay an additional companyrt fee of Rs.12.50 in view of the enhanced claim.
In this suit issue number3 relating to the bar of limitation and issue number4 relating to the maintainability of the suit were framed.
It is this judgment and order which is subject matter of challenge in the present appeal.
Though the suit filed by respondent number1 was decreed yet he preferred a revision petition being CRP No.3797 of 1985 challenging the judgment and decree passed in his favour.
The High Court though observed that it was an unusual revision filed by a plaintiff yet allowed the same on 18.2.1987, set aside the judgment and decree of the trial companyrt and rejected the plaint.
On these findings the judgment and decree of the High Court were set aside and the case was remanded to the companyrt of Addl.
The appellant number6 to 10 are sons and daughters of Shri M.G. Dayal and they were owners of the suit property residential building at Jayanagar, Bangalore .
1 to 5 Pukhraj D.Jain and his four sons purchased the property in dispute from the original owners, namely, respondent number.
The Revision Petition preferred against the said order being CRP No.702 of 1985 was dismissed by the High Court at the admission stage on 29.5.1985.
On 7.11.1977 he filed OS No.801 of 1977 subsequently renumbered as OS No.1891 of 1980 against the appellant number.
City Civil Judge to have companysidered the application moved under section 10 CPC at the first instance before deciding issues number 3 and 4.
The appellant number.
6 to 10 on 18.4.1985 for Rs.3,60,000/ and they were put in possession of the first floor of the building.
This development has taken place subsequent to the filing of special leave petition in this Court.
Respondent number1 filed an amendment application on 26.6.1985 seeking an amendment of the plaint in OS No.801 of 1977 and claiming an additional amount of Rs.125 towards the companyt of the legal numberice.
The suit for recovery of the amount was decreed by the trial Court on 24.7.1985 but on account of very clever device adopted by respondent number1 of seeking additional sum of Rs.125/ towards companyt of legal numberice and thereafter number paying the requisite additional companyrt fee of Rs.12.50 on the enhanced claim, the High Court in a Revision filed by him set aside the decree for refund of the amount and rejected the plaint.
The suit giving rise to the present appeal was instituted by respondent number1 on 2.4.1988 wherein he again sought specific performance of the agreement to sell dated 512.1974.
The appellants number.1 to 5 after execution of the sale deed in their favour on 18.4.1985, filed a suit being OS number 4631 of 1986 seeking eviction of respondent number1 from the ground floor of the house in dispute and also for mesne profits.
On 2.4.1988 the respondent number1 filed another suit being OS number1629 of 1988 against appellant number.
City Civil Judge, Bangalore dismissed OS number 1629 of 1988 on 30.9.1995 after deciding issues number3 and 4 wherein he held that the suit was barred by limitation and the same was number maintainable.
City Civil Judge in number deciding the application moved by the plaintiff and in proceeding to decide issues number 3 and 4 was wholly illegal.
It was obligatory on the part of the learned Addl.
6 to 10 in the Court of City Civil Judge, Bangalore for specific performance of the agreement dated 5.12.1974.
The respondent number1 also filed an application under section 10 CPC seeking stay of his own suit OS number 1629 of 1988 on the ground that the issues involved were also directly and substantially in issue in a previously instituted suit being OS number 4631 of 1986 which had been filed by the appellants number.1 to 5 for his eviction from the ground floor of the house and for possession.
The suit for eviction of respondent number1 and possession OS number 4631 of 1986 filed by the appellant number.
City Civil Judge, Bangalore.
Thereafter the suit was listed on several dates for companysideration of the application but finally, after hearing the companynsel for the parties, the learned Addl.
This application was rejected by the trial companyrt on 3.12.1984 on the ground that the suit for specific performance had become barred by limitation.
The respondent number1 issued a legal numberice rescinding the companytract and claimed refund of the advance amount paid by him.
RFA number 171 of 1998 preferred by respondent number1 against the aforesaid judgment and decree was dismissed by the High Court on 2.7.2001.
The original owners appellant number.
1 to 5 was decreed by the trial companyrt on 20.12.1997.
City Civil with a direction to dispose of the application under section 10 read with 151 CPC moved by the plaintiff on priority basis.
City Civil Judge and remanded the matter to the trial companyrt to dispose of the application moved by the respondent number1 plaintiff under section 10 CPC for stay of his suit.
The respondent number1 was also put in possession of the ground floor of the property.
They executed an agreement to sell the suit property in favour of Dr. G. Gopalakrishna plaintiff respondent number1 on 5.12.1974 for a companysideration of Rs.1,42,500/ and received Rs.42,500/ by way of advance.
However, instead of paying aforesaid amount the respondent number1 filed a memo stating that he was number in a position to pay the companyrt fee and as such the plaint may be rejected being deficiently stamped.
The only ground urged in the appeal preferred by respondent number1 in the High Court was that as he had filed an application under section 10 CPC on 21.10.1993 seeking stay of his suit OS number1629 of 1988 , it was obligatory upon the trial companyrt to companysider the said application first before deciding issues number3 and 4.
After companysiderable period of time respondent number1 moved an amendment application seeking permission to companyvert the suit into one for specific performance of the agreement of sale.
In order to understand the companytroversy involved it is necessary to set out the facts which are little involved.
P. MATHUR, J. This appeal by special leave has been preferred by the defendants against the judgment and order dated 17.3.1997 of High Court of Karnataka by which the Regular First Appeal preferred by the plaintiff was allowed and case was remanded to the trial companyrt with certain directions.
6 to 10 owners of the property claiming the amount which had been paid by way of advance.
