# S.G. Thimmmappa v. T. Anantha and

- **Citation:** (2000) 3 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-03-30
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-g-thimmmappa-v-t-anantha-and-39559
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
88
decree as invalid and illegal was barred by
provisions of Rule 3-A.

10. Reference has also been made to
a decision of the Karnataka High Court in
S.G. Thimmmappa Vs. T. Anantha and
others, reported in A..R. 1986 Karnataka in
which it was held that rule 3 -A of Order
23 does not include suits where the
compromise
decree
is
challenged on
grounds
like
void
undue
influence
coercion by which the decree can be
avoided treating it as voidable. With
respect it may be pointed out that while
holding that till the decree is avoided or
displaced it can be treated as lawful for
the limited purpose of Order 23 Rule 3
C.P.C., the court did not notice the
provisions of the explanation to Rule 3 of
Order 23. Besides this, in view of the
decision of the Hon'ble Supreme Court in
Banwari Lal's case (supra) the decision in
S.G. Thimmappa's case (supra) rendered
by Karnataka High Court stands implidely
over ruled and is no more good law. S.G.
Thimmappa's case was also considered by
the Rajasthan High Court in Gopal Lal Vs.
Babu Lal and others 1997 (I) Civil Court
Cases - 8 (Rajasthan) and it was held that
the decision in that case cannot be held to
be correct view in the light of the decision
of the Hon'ble Supreme Court in the case
of Banwari Lal (supra).

11. For the reasons stated above, I
am of the View that there is no error of law
in the judgement and decree passed by the
Lower appellate court. No. substantial
question of law is involved in this appeal
merits dismissal.

12. Appeal is hereby dismissed at the
admission stage.
Appeal Dismissed.

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SODLQWLII(Para 5)

By the Court

1. This is defendant's second appeal
arising out of the original suit No.30 of
1994 (Smt. Usha Bala Srivastava vs. Rama
3All] Rama Shanker Srivastava V. Smt. Usha Bala Srivastava
89
Shanker Srivastava) for seeking relief
of decree for specific performance to
execute the sale deed in pursuance of the
agreement dated 28th December, 1992.
The trial court by its judgement and order
dated 30.3.1998 directed the defendant to
execute the sale deed within two months
on accepting the balance sale amount of
Rs.14,500/- and in case defendant fails to
execute the sale deed and getting the sale
deed registered, the same shall be executed
by the Court at the instance of the
plaintiff and possession will be delivered
accordingly. A perusal of the trial Court's
Judgement indicates that the defendant did
not co-operate and made all possible
efforts to ensure that an the hearing of the
suit is delayed. Trial court had finally
proceeded for hearing of the suit under
order XVII rule 3 of the code of civil
procedure.

2. Against the order directing the
case to proceed under order XVII rule 3
C.P.C. a revision was filled by the
defendant which was also dismissed and
thereafter the trial court had proceeded to
decide the suit finally. The trial court
decreed the suit of the plaintiff on
20.3.1998 aginst which Appeal No.355 of
199 filed by the defendant, has been
dismissed by the XII Additional District
Judge, Allahabad by its judgement and
decree dated 22.7.2000.

3. Learned counsel for the defendant-
appellant has raised two points only:

4. The appellant pleaded that the
burden of proof lay upon the plaintiff to
show that after obtaining permission from
the competent authority under the Urban
Land Ceiling Act, the burden of proof lay
upon the plaintiff and he ought to have
been given intimation to the defendant but
the plaintiff having failed to do so and
thus he failed to discharge his burden of
proof. The grievance of the defendantappellant as submitted by the learned
counsel for the appellant is that the burden
of proof on the said issue has been illegally
placed upon the defendant-appellant.

5. It may be stated that from perusal
of the trial court's judgment it does not
transpire that any pleading to that effect or
any issue on this point was pressed. It
appears that in the absence of necessary
pleading on this aspect no issue was
framed and there is no reference on the
said point in the trial court's judgement.
Apparently
the
defendant
raised
the
aforesaid
objection
before
the lower
appellate court who has dealt with it on
internal page 7 of the certified copy of the
judgement filed along with the memo of
appeal. The lower appellate court has
noticed that according to the agreement in
question the defendant had to obtain the
permission form the competent authority
under the Urban Land Ceiling Act and to
intimate the same to the plaintiff about the
same. The lower appellate court has
come to the conclusion that in view of
the aforesaid clause as contemplated in
the agreement it was the duty of the
defendant to obtain permission under the
Urban Land Ceiling Act and give notice
of that permission to the plaintiff. On the
basis of the record before him the lower
appellate court came to the conclusion that
the defendant failed to discharge his
obligation and consequently failed to
discharge the burden to establish that he
had obtained permission from he ceiling
authority and due notice/information was
given to the plaintiff.

6.

The
second
and
the
last
submission
made
on
behalf
of
the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
90
appellant is that the court, if decided to
proceed under order XVII rule 3 of the
code of Civil Procedure, it was under
statutory obligation to proceed forthwith
and deliver judgement the same day and
since in the instant cased the lower
appellate court after concluding the
hearing, fixed another date for delivery of
judgement the case could not be dealt
with under order XVII rule 3 C.P.C. and
it ought to have been treated under order
XVII rule 2 C.P.C. The argument is
fallacious. Learned counsel for the
appellant
conceded
that
the
rightly
proceeded under order XVII rule 3 C.P.C.
The arguments to treat the suit under order
XVII rule 2 C.P.C., after the court had
proceeded and completed the hearing
under order ITR 3 C.P.C. at the time of
fixing the date for delivery of judgment
and should have reverted back to as to
reverse entire proceeding for deciding the
suit under order XVII rule 2 C.P.C., is
repostrous and without merit.

7. A perusal of the provision of order
XVII rule 3 C.P.C., as amended in the state
of U.P. clearly shows that the Court is
required to decide the suit for the with
and it should not adjourn the case and
proceed with the hearing of the suit is at it
does not require on this date alone court
must complete the evidence as well as
hearing in continuity. The mere fact that
the court after concluding the hearing on
that date itself fixed the date of delivery
of judgment does not mean that the court
did not decide the suit forthwith with in
the meaning of 0.17 R s C.P.C. The
delivery of judgement is merely recording
the decision which as process the court
had already completed on the date.

8. No. other point has been raised.

In view of the above no substantial
question of law arises in the present
appeal. It is accordingly dismissed.

Appeal dismissed.

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