A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

Plaint is returned.-How the suit for the entire schedule of property Ac.5-30 guntas is maintainable, when the Agreement of Sale is for Ac.2-00 guntas and another receipt is for Ac.2-00 guntas. = the agreement of sale is executed to an extent of Ac.2.00 in Sy.No.6, and clause no.4 in the agreement of is pertaining to remaining portion of his land i.e. 3.30 gts in Sy.No.4 and the 1st party assures second party after completion of sale transaction under agreement of sale dt.17/2/2015 only the future transaction takes place. Therefore suit is not maintainable to the entire extent of Ac.5.20 gts and it is maintainable to extent of Ac.2.00 only in Sy.No.6 only. Hence counsel is directed to restricted his prayer to the extent of two acres only. Aggrieved by the direction to restrict his suit prayer as a condition precedent for entertainment of the suit, the petitioner-plaintiff is before this Court.= In the aforestated scheme, there is no power vesting in the trial Court at the time of registration of the suit to venture into the merits of the matter or possible disputed issues. In the present case, the objection raised by the office of the trial Court, which was thereafter sustained by the trial Court, is that the suit prayer relates to a larger extent than can be claimed by the petitioner-plaintiff as per the suit agreement. This is not an issue which could have been gone into by the trial Court at the time of registration of the plaint. It is for the petitioner-plaintiff to demonstrate before the trial Court during the suit proceedings as to how he is entitled to such relief. When he valued the property in question fully and properly and paid requisite Court fee thereon, the trial Court had no power to determine as to the extent of relief that could be claimed by him at the very threshold and require him to amend his suit prayer accordingly. It may be noticed that it is not the case of the trial Court that the plaint did not disclose any cause of action whereby it could have rejected the plaint under Order 7 Rule 11 CPC. In fact, it did not even do so. It merely returned the plaint requiring the petitioner-plaintiff to restrict his prayer to a lesser extent. The order dated 12.04.2018 passed by the trial Court to this effect is therefore unsustainable in law and is accordingly set aside. The trial Court is directed to examine the plaint presented by the plaintiff only in the context of the parameters prescribed in the Code of Civil Procedure, 1908, and the Civil Rules of Practice and if it is found to be in order, register the same as per Rule 23 of the Civil Rules of Practice.

In the instant case, admittedly the Written Statement was filed by the respondent/plaintiff in answer to the counter claim of the petitioners on 18-11-2016, nine years after such counter claim had been filed by the petitioners on 05-07-2018.=The Supreme Court had permitted extension of time beyond 90 days only in exceptionally hard cases. In the present case, the negligence of the respondent or his counsel in reading the Written Statement-cum- counter claim of petitioners and consequently failing to file his response cannot bring the case of the respondent in the category of an exceptionally hard case. By such erroneous exercise of jurisdiction, the Court below had practically nullified the period fixed by Order VIII Rule 1 CPC. Therefore, the Civil Revision Petition is allowed; order dt.12-10-2017 in I.A.No.101 of 2017 in O.S.No.290 of 2017 of the Principal Junior Civil Judge, Punganur, is set aside; and the said I.A. is allowed and the Written Statement filed by the respondent/plaintiff in answer to the counter claim of the petitioners is struck off the record and shall not be considered for any purpose.

The plaintiff though stated his readiness and willingness to perform the essential terms of the contract did not produce any proof to show his readiness. ? = In the present case, the plaintiff contributed his share of the advance sale consideration at the time of Ex.A.1, agreement of sale, followed by payment of Rs.50,000/- on 12.08.1985, which was accepted by the first defendant. In the evidence of D.W.1, a suggestion was made stating that the plaintiff had Acs.20.00 of dry land and Acs.4.00 of wet land and was getting the yield of 200 bags of paddy and 200 bags of groundnut and earning Rs.1,00,000/- to Rs.1,50,000/- at the time of Ex.A.1. Another suggestion was also put to him stating that right from the beginning, the plaintiff was ready and willing to perform his part and get a valid sale deed executed, but the first defendant was evading the same. The refusal of the notice issued by the plaintiff on 24.09.1987 asking the defendants to receive the balance sale consideration and execute a registered sale deed clearly indicates the readiness and willingness of the plaintiff. This was further supported by deposit of balance sale consideration in the Court at the time of filing the suit. Hence, the decisions relied on by the learned counsel for the appellants are not applicable to the facts of the present case though there cannot be any dispute on the point of law.

Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. = The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard. Hence, in view of admission of execution of the Ex.A1 promissory note, the burden is on the defendant to prove his case. Besides himself, the defendant examined DWs.2 to 4 to show that the said Mohana Rao was in the habit of lending money, but did not speak of non-passing of consideration. On the other hand, it is the case of the defendant that he was borrowing amounts from Mohana Rao and the suit promissory note was executed for a much higher amount than the amount borrowed by him. That borrowing of higher amount was also not proved by the defendant in the instant case by producing any documentary evidence. In view of the same, the judgment and decree passed by the trial Court cannot be set aside and accordingly it is affirmed.