THE HONOURABLE SRI JUSTICE N.V. RAMANA Civil Revision Petition Nos.4636 and 4637 of 2009 COMMON ORDER: These two civil revision petitions, under Article 227 of the Constitution of India, are directed against the orders, dated 11.08.2009, passed in I.A.No.333 of 2009 and I.A.No.291 of 2009 respectively in O.S.No.594 of 2004 on the file of the V Additional Senior Civil Judge’s Court, Fast Track Court, Ranga Reddy District. Respondent No.1 herein, namely Hyderabad Co-operative House Building Society Limited, is the plaintiff, and petitioners and other respondents herein are the defendants in the suit O.S.No.594 of 2004 filed before the Court below, for specific performance of agreements of sale dated 25.02.1982 and 24.03.1982. Taking into consideration the respective pleadings of the parties, the Court below framed the following issues for consideration: 1. Whether the agreements of sale dated 25.02.1982 and 24.03.1982 are true, valid and genuine and binding on D1 to D6? 2. Whether the plaintiff is ready and wiling to perform its contract of sale? 3. Whether the plaintiff society was inducted in possession of suit schedule property? If so, when? 4. Whether the plaintiff society has got cause of action to file the suit? 5. Whether the sale agreements are not supported by consideration? 6. Whether the suit claim is barred by limitation? 7. Whether the sale deed No.993/1965 dated 03.01.1965 in favour of D7 to D9 by D1 to D6 is true, valid and binding on the plaintiff-society, so as to deny the specific performance as pleaded by the defendants? 8. Whether the suit filed by the plaintiff-society through Mr. Mohd. Riyazuddin is not maintainable? 9. Whether the plaintiff-society is entitled to the relief of specific performance of contract as prayed for? 10. To what relief? Thereafter, the 1st respondent-plaintiff filed I.A.No.333 of 2009, under Order XIV Rule 5 of the Code of Civil Procedure, praying the Court below to strike off issues 5, 7 and 8, whereas the defendants 7, 8, 10 to 15, 18 to 39 and 41 filed I.A.No.291 of 2009, praying to amend issue No.7, by correcting the date of document mentioned as 03.01.1965 to that of 03.11.1965, and to frame the following issues as additional issues: 1. Whether Dr. Mohd. Riyazuddin was elected as Secretary of the plaintiff society through due process of law? 2. Whether the plaintiff society has not become defunct as alleged by the plaintiff? 3. Whether the suit schedule property is not self acquired property of late Votla Sattaiah and the same is joint family property as alleged? 4. Whether the suit for the relief of specific performance of agreements of sale dated 25.02.1982 and 24.03.1982 is maintainable in view of the execution of sale deed by late Votla Sattaiah in favour of defendants 7 to 9 and late Y. Chinnamma?” These two I.As. were contested by the opponent parties, by way of filing counters. After detailed consideration of the matter In I.A.No.333 of 2009 filed by the plaintiff, praying to strike off issues 5, 7 and 8, the Court below opined that Issue No.5 i.e. ‘Whether the sale agreements are not supported by consideration?’ has to be struck off, in view of specific admission of defendants 2 to 6 in their written statement that they have received the amounts from the plaintiff under misapprehension of the legal rights with respect to the suit land. As regards issue No.7 viz., ‘Whether the sale deed No.993/1965 dated 03.01.1965 in favour of D7 to D9 by D1 to D6 is true, valid and binding on the plaintiff-society, so as to deny the specific performance as pleaded by the defendants?, the Court below held that the said issue is also liable to be struck off, in view of the admitted final termination of the proceedings in O.S.No.160 of 1982 filed by D7 to D9 and late Chinnamma for declaration of title and recovery of possession, basing on the same sale deed, and that the said issue cannot be re-agitated in the present suit, and moreover the plaintiff cannot challenge the title of his vendors, in view of Section 13 of the Specific Relief Act. However, as regards striking of issue No.8 viz., ‘Whether the suit filed by the plaintiff-society through Mr. Mohd. Riyazuddin is not maintainable?’, the Court below held that the said issue shall not be struck off, since the capacity of the said Mr. Mohd. Riyazuddin to represent the plaintiff society as well as the maintainability of the suit as filed by him are challenged. Accordingly, I.A.No.333 of 2009 was allowed in part, by striking off issues Nos.5 and 7. Aggrieved thereby, the defendants 18 to 39 and 41 filed C.R.P.No.4636 of 2009. In I.A.No.291 of 2009, filed by the defendants 7, 8, 10 to 15, 18 to 39 and 41, seeking amendment of issue No.7 and framing of additional issues referred supra, the Court below opined that the proposed additional issues 1 and 2 can be decided while dealing with issue No.8, as it is a composite and comprehensive issue, and thus there is no necessity to frame the said additional issues 1 and 2. As regards proposed additional issue No.3, it was held that the capacity of defendants 1 to 6 to execute the agreement, which is sought to be enforced in the present suit, is a question of fact and the same can be considered and decided while dealing with issue No.1 and therefore there is no necessity to frame additional issue No.3. So far as additional issue No.4 is concerned, it was held that, since the suit O.S.No.160 of 1982 filed by D7 to D9 and late Chinnamma for declaration of title and recovery of possession was conclusively and finally terminated by the Apex Court, the same issue cannot be re-agitated and considered in the present suit, particularly, when issues No.5 and 7, framed in connection with the said issue, were struck off, by order in I.A.No.333 of 2009. Further, with regard to the prayer for amendment of issue No.7, the Court below held that the question of amendment does not arise, since the very issue has been struck off. Accordingly, I.A.No.291 of 2009 was dismissed. Aggrieved thereby, C.R.P.No.4637 of 2009 is filed. Learned counsel for the petitioners contended that if issue No.7 is not allowed to be framed, it is contrary to the Explanation to Order XXII Rule 9, as per which the petitioners are entitled to take defence in the present suit, based on the facts which constituted the cause of action in O.S.No.160 of 1982 filed by defendants 7 to 9 and Y. Chinnamma, which had abated, and thus the Court below erred in striking off issue No.7. In support of this contention, the learned counsel relied on a decision of the Full Bench of Punjab and Haryana High Court in Gajpat Singh v. Sudhan[1]. He further contended that though O.S.No.160 of 1982 had abated, which was confirmed finally by the Supreme Court, in Civil Appeal No.5615 of 2002, it was observed by the Supreme Court that some other proceedings have been initiated in relation to an agreement of sale purported to have been executed and the dispute as regards the same shall be considered on its merits about which no opinion is expressed. Further, the additional issue No.4, sought to be framed, is interrelated to issue No.7 and therefore the same also needs to be considered. He also contended that the Court below erred in not considering the fact that by framing the additional issues, no prejudice will be caused to any of the parties. So far as issue No.5 with regard to consideration is concerned, he contended that the 1st respondent-plaintiff and defendants 1 to 6 are concerned with the same. On the other hand, learned counsel for respondent No.1 submitted that as per Order VIII Rules 3 and 5 of the Code of Civil Procedure, in the written statement of the defendants, there should be specific denial of grounds urged in the plaint, and no issues can be framed on the aspects, which were not specifically denied, and that as per Rule 2, new facts must be specially pleaded i.e. the defendant must raise by his pleading all matters which show the suit not to be maintainable. Further, while framing the issues, the law laid down in Order XIV of C.P.C. in that regard has to be followed by the Court. He further submitted that, may be the Court below is not right in striking off issue No.7 in view of the abatement of earlier suit, but however, there must be a specific pleading or denial in the written statement so as to frame any issue. With regard to issue No.5 concerning consideration, it is submitted that, in the written statement of defendants 1 to 6, there is a specific admission about the receipt of consideration and, hence, issue No.5 has been rightly struck off by the Court below. Heard the learned counsel and perused the impugned orders and other material made available on record. In view of the rival contentions advanced by the respective counsel, it is necessary to refer to the pleadings of the parties in the suit, to decide whether the orders passed by the Court below are in accordance with the purport of Order XIV of the Code of Civil Procedure. Pleadings of the plaintiff as per the plaint filed in the suit: The plaintiff Society is registered for the purpose of providing houses to its members. While it was intending to acquire land for the said purpose, one Votla Sattaiah and his six sons, who are D1 to D6, said to be the possessors and owners of the land to an extent of Ac.13.27 gts. in Sy.No.69 situated at Kondapur Village, Serilingampally Mandal, Ranga Reddy District, offered to sell 10 acres of the land to the plaintiff, and they executed an agreement of sale on 25.02.1982 in favour of the plaintiff. The original agreement of sale was filed before the Hon’ble Supreme Court and a Xerox copy of the same is filed in the suit and marked as document No.2. Under the said agreement, the sale consideration was fixed as Rs.10,000/- per acre and that the plaintiff made part payment of Rs.10,000/- and the remaining consideration shall be paid to the vendors by selling the plots to its members and that the owners shall execute and register the sale deeds in favour of the plaintiff or its nominees within one year to the extent of the amount paid by the plaintiff and all costs of registration shall be borne by the plaintiff Society. Pursuant to the agreement of sale, possession of the property was delivered specifically permitting the plaintiff to take up demarcation of plots, development of land, formation of roads, fixing of sign- boards, boundary stones etc. While so, subsequently, the defendants 1 to 6 requested the plaintiff to increase the sale consideration from Rs.10,000/- to Rs.35,100/- per acre, for which the plaintiff had agreed and all other terms and conditions of the agreement dated 25.02.1982 stand confirmed. Defendants 1 to 6 and their father received various amounts from the plaintiff on various dates starting from 25.02.1982 to 10.03.1991, and that the payments were recorded in the books of the society and the said accounts were audited by the statutory auditors. The total consideration payable by the plaintiff for ten acres would workout to Rs.3,51,000/-, out of which Rs.1,51,000/- was paid and the balance amount of Rs.2,00,000/- has to be paid. The plaintiff Society was put in possession of the property and over the years it has taken up extensive development works by spending huge amounts. When allotment of plots to the members of the plaintiff Society was in process, the defendants 7 to 9 along with Smt. Y. Chinnamma tried to interfere with the possession of the plaintiff and when the said fact was brought to the notice of V. Sattaiah and his sons i.e. defendants 1 to 6, they filed O.S.No.19 of 1979 on the file of District Munsif, West and South, Ranga Reddy District, for perpetual injunction restraining the defendants 7 to 9 and Smt. Y. Chinnamma from interfering with the said land of Ac.13.27 gts. in Sy.No.69 of Kondapur Village and obtained a decree of perpetual injunction on 31.08.1979. Thereafter, defendants 7 to 9 and Smt. Y. Chinnamma started claiming title over six acres of land in the subject survey number, out of 10 acres of land agreed to be sold to the plaintiff by V. Sattaiah and his sons. The said defendants 7 to 9, claiming that the said V. Sattaiah executed registered sale deed dated 03.11.1965 in their favour for the said six acres of land, started asserting their title and were trying to seek possession of the land. The said defendants 7 to 9 and Smt. Y. Chinnamma filed O.S.No.160 of 1982 before the Munsif Magistrate, West at Hyderabad, seeking a relief of declaration of title and recovery of possession with respect to the said six acres of land. The plaintiff was impleaded in the said suit and it filed written statement. The matter was contested and ultimately the suit was decreed on 17.06.1991. Thereupon, the defendants 1 to 6 and the plaintiff preferred an appeal in A.S.No.29 of 1991 on the file of District Judge, Ranga Reddy District, and during the course of the said appeal, the father of D1 to D6 executed an irrevocable General Power of Attorney, in favour of the Secretary of the plaintiff Society, vide registered document No.154/90, dated 22.01.1990, authorizing him to execute a registered sale deed in favour of the nominees of the plaintiff Society and other members with respect to 4 acres of land out of 10 acres covered under the agreement of sale. During the hearing of the said appeal, it was noticed that Smt. Y. Chinnamma died on 02.10.1985 during the pendency of suit O.S.No.160 of 1982 itself. It was also noticed that the suit O.S.No.160 of 1982, seeking declaration, being in the nature of joint claim made by the plaintiffs and one of the joint owners having died six years before the decree in the suit and her legal heirs having not been brought on record before the trial Court, the decree of the trial Court was a nullity. The said appeal was allowed by the District Judge, by dismissing the suit O.S.No.160 of 1982, filed by the defendants 7 to 9 along with Smt. Y. Chinnamma, as having been abated. Thereafter, defendants 7 to 9 preferred a second appeal being S.A.No.354 of 1993 before the High Court of A.P., questioning the judgment and decree in A.S.No.29 of 1991, which was also dismissed on 27.04.2001 and thereupon they filed Special Leave Petition before the Supreme Court. While so, when the second appeal S.A.No.354 of 1993 was in the final stage of hearing, defendants 1 to 6 filed affidavits seeking permission to withdraw their written statement filed in O.S.No.160 of 1982 and attempted to recognize the title of defendants 7 to 9. The said attempt was opposed by the plaintiff by filing counter-affidavit. Since the defendants 1 to 6 disputed the right, title and interest of the plaintiff by filing affidavits, the plaintiff is obliged to file the present suit. Pleadings of defendants 1 to 6 as per their written statement: The father of defendants 1 to 6 purchased land in an extent of Ac.13.27 gts. in Sy.No.69 from one Khairuddin and he sold an extent of Ac.6.00 in favour of D7 to D9 and one Smt. Y. Chinnamma through registered sale deed dated 03.11.1965 and delivered possession of the said land to the purchasers. Since the date of purchase, defendants 7 to 9 and Y. Chinnamma are in possession of the said land of Ac.6.00, as owners, and mutation was also effected in their favour. They executed the agreement of sale in favour of the plaintiff under misconception of legal rights and the plaintiff impressed upon them that they have share in the suit land along with their father, as it is their joint family property. The plaintiff prevailed upon them to enter into an agreement of sale for an extent of Ac.10.00, though their father informed the plaintiff about execution of sale deed for an extent of Ac.6.00 in the suit land in favour of D7 to D9 and Smt. Y. Chinnamma and delivery of possession of the said land in their favour. As they have already sold six acres of land in favour of D7 to D9 and Smt. Y. Chinnamma, the question of delivery of possession of Ac.10.00 in favour of the plaintiff does not arise. It is denied that they requested the plaintiff to increase the sale consideration from Rs.10,000/- to Rs.35,100/- per acre. When they realized that they have no right over the suit land, they offered to pay back the money received from the plaintiff under misapprehension of legal rights with respect to the suit land. They are not aware of the plaintiff depositing an amount of Rs.2.00 lakhs into bank. It is also denied that the plaintiff was in put in possession of the suit land and it developed the suit land by spending huge amounts. The plaintiff was well aware of the fact that D7 to D9 and Chinnamma were asserting their ownership over Ac.6.00 under sale deed dated 03.11.1965. The trial Court decreed the suit filed by defendants 7 to 9 and Chinnamma and thereafter, at the behest of plaintiff, they joined the plaintiff in filing appeal A.S.No.29 of 1991. When they realized that the defence taken by them in the suit O.S.No.160 of 1982 was under misapprehension, they filed petitions before the High Court of A.P. in C.M.P. (Sr).Nos.280 to 285 of 2001, seeking permission to withdraw the written statement in O.S.No.160 of 1982. In the S.L.P. (Civil) No.18601 of 2001 filed before the Hon’ble Supreme Court of India, they filed a compromise petition admitting title and possession of defendants 7 to 15 over the suit land. It is denied that they suddenly turned around and changed their plea before the High Court. It is further stated that filing of C.M.P.(Sr).Nos.280 to 285 of 2001 itself will not give rise to cause of action for filing the present suit. They admitted their signatures on the affidavits filed in support of the petitions in C.M.P.(Sr).Nos.280 to 285 of 2001 field before this Court. The plaintiff is aware that the land in Sy.No.69 is the exclusive property of their father Sattaiah and, out of the said land, their father sold an extent of Ac.6.00 in favour of D7 to D9 and one Y. Chinnamma, and the same is valid transaction. This is evident from the fact that in the year 1990 itself, the plaintiff obtained a separate registered power of attorney dated 22.01.1990 from their father with respect to four acres of land only in Sy.No.69, which is not covered by the registered sale deed dated 03.11.1965. Pleadings of defendants 8, 10, 11, 13, 14 and 15 as per their written statement: Late Sattaiah was the exclusive owner of the suit property and his name was shown as person in possession of the suit land in the revenue records. The said land is not ancestral property of Sattaiah and as such the defendants 1 to 6 have nothing to do with the said property. During the year 1965, after due enquiry, the defendants 7 to 9 and Smt. Y. Chinnamma, the predecessors-in-title of defendants 10 to 15, purchased land in an extent of Ac.6.00 in Sy.No.69 of Kondapur Village from the father of D1 to D6, under a registered sale deed dated 03.11.1965, and their names were also mutated in the revenue records. Since the land in an extent of Ac.6.00 was already sold by Sattaiah in favour of D7 to D9 and Chinnamma, the question of said Sattaiah entering into an agreement of sale in favour of the plaintiff to sell the suit land would not arise and the said transaction is illegal and not binding on them. As D1 to D6 were never the owners of the suit property, the plaintiff was never put in actual possession of the property. The agreement of sale said to have been executed in favour of the plaintiff by Sattaiah and his sons i.e. D1 to D6 is unenforceable and it was brought into existence with a view to defeat the rights of these defendants who purchased the property from D7 to D9 and other owners. They are bona fide purchasers under registered sale deeds and denied various averments made in the plaint. The contents of affidavits filed in C.M.P.(Sr).Nos.280 to 285 of 2001 before this Court cannot be taken as refusal to recognize the agreement of sale and alleged rights of the plaintiff over the suit schedule property and it cannot be taken as starting point of limitation for filing the suit for specific performance. Further, the suit is implicitly barred by limitation, and as Sattaiah executed sale deed in favour of D7 to D9 and Y. Chinnamma in the year 1965, in the absence of filing any suit for cancellation of the said sale deed within the period of limitation, the plaintiff is not entitled to file the present suit for specific performance and as such it is not maintainable. The plaintiff failed to file a suit for declaration that the said property is the joint family property of late Sattaiah and defendants 1 to 6 and they are competent to execute the agreement of sale, and as such the suit itself is not maintainable. A perusal of entire pleadings, referred to above, clearly reveals that written statements filed by D1 to D6 and other defendants indicate that the agreement of sale sought to be enforced is not supported by any consideration. Apart from that, some of the defendants took a specific plea that in the absence of filing a suit for declaration that the sale deed bearing No.993/65 dated 03.01.1965 executed by Sattaiah in favour of D7 to D9 and Chinnamma is invalid, the same is binding on the plaintiff Society and it is required to deny specific performance as pleaded in plaint. In view of the same, it is required to be examined whether the above said two issues are required to be tried by the trial Court along with other issues framed. In this context, it is relevant to refer to Order XIV Rule 5 of C.P.C., which reads as under: “Power to amend and strike out issues:- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.” The purport of the above said Rule is that the Court, before exercising its powers to take cognizance of questions, touching the root of the matter, should frame and record the issues or such questions. The power of the Court to amend the issues or frame additional issues under Rule 5 is subject to the provisions of Rule 3. Rule 3 specifies that Court may frame issues from all or any of the following materials namely allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties, allegations made in the pleadings or in answers to interrogatories delivered in the suit and the contents of documents produced by either party. In the instant case, the case of the plaintiff is that initially it agreed to purchase the land at the rate of Rs.10,000/- per acre and subsequently the sale consideration was enhanced from Rs.10,000/- to Rs.35,100/- per acre, whereas the case of the defendants is that D1 to D6 are not the owners of the property as it is