H R Rehaman vs Mansoor Nazeer
2021 Latest Caselaw 5215 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 1ST DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE R. NATARAJ

MISCELLANEOUS SECOND APPEAL NO.76 OF 2019 (RO)

BETWEEN:

H.R. REHAMAN
AGED ABOUT 75 YEARS,
S/O LATE ABDUL HAFEEZ
R/O H NO.191-A, 7TH CROSS,
JAYAPURA MAIN ROAD,
POOR HOUSE COLONY,
TUMAKURU TOWN-572 101.
                                           ...APPELLANT
(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR
     SRI. S.V.PRAKASH, ADVOCATE (THROUGH VC))

AND:

MANSOOR NAZEER
S/O LATE NAZEER AHAMED
AGED ABOUT 59 YEARS,
R/O 16TH CROSS, ASLAM BUILDING,
(MUNICIPAL COUNCIL)
P.H. COLONY,
TUMAKURU TOWN-572 101.
                                          ...RESPONDENT
(BY SRI. K.R.RAMESH, ADVOCATE)

      THIS APPEAL IS FILED UNDER ORDER XLIII RULE (1)(U)
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
27.06.2019 PASSED IN R.A.NO. 345/2016 ON THE FILE OF THE
II ADDITIONAL DISTRICT JUDGE, TUMAKURU, PARTLY
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 30.03.2013 PASSED IN O.S.NO.30/2008
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
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CJM, TUMAKURU, DECREEING THE SUIT AND MATTER IS
REMITTED BACK TO THE TRIAL COURT WITH A DIRECTION TO
FRAME AN ADDITIONAL ISSUE REGARDING THE READINESS
AND WILLINGNESS OF THE OF PLAINTIFF.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This Miscellaneous Second Appeal is filed by the

plaintiff in O.S.No.30/2008 challenging the Judgment and

Decree dated 27.06.2019 passed by the II Additional

District Judge, Tumakuru (henceforth referred as 'First

Appellate Court') in R.A.No.345/2016 by which it reversed

Judgment and Decree dated 30.03.2013 passed by the

Additional Senior Civil Judge And CJM, Tumakuru

(henceforth referred to as 'Trial Court') in O.S.No.30/2008.

2. The suit in O.S.No.30/2008 was filed for specific

performance of an agreement of sale dated 06.10.2007.

Though the defendant contested it, yet he did not adduce

evidence and therefore, the Trial Court decreed the suit.

An appeal was preferred by the defendant before the First

Appellate Court contending that due to reasons beyond his

control, he could not adduce evidence. He, therefore,

sought the Court to remand the case for re-consideration

in accordance with law.

3. The First Appellate Court, while answering point

Nos.2 to 6, underscored the importance of framing issue

regarding the readiness and willingness on the part of the

plaintiff. It also held that the Trial Court did not frame any

issue regarding readiness and willingness on the part of

the plaintiff. Hence, it allowed the appeal and remitted the

case back to the Trial Court for reconsideration.

4. Being aggrieved by the aforesaid order, the

appellant - plaintiff has preferred this appeal.

5. Learned counsel for the appellant - plaintiff

submitted that since there was no dispute by the

defendant, there was no need for the plaintiff to prove the

readiness and willingness to complete his part of contract.

6. I have considered the contentions urged by the

parties.

7. A perusal of the judgment of the Trial Court

indicates that it had not framed the relevant issue namely;

"Whether the plaintiff had proved his readiness and

willingness to perform his part of contract?".

8. The requirement of an action for specific

performance is that the plaintiff must plead and prove his

readiness and willingness to complete his part of the

contract. A perusal of the evidence on record also

indicates that the plaintiff did not produce any material

evidence to establish his readiness and willingness to

complete his part of contract. No doubt, the defendant had

failed to cross-examine P.W.1 and he failed to enter the

witness box. That itself would not prove the readiness and

willingness of the plaintiff as it was a fact that had to be

proved by acceptable oral and documentary evidence. It

could be that the plaintiff ignored the said requirement

since no issue was framed by the Trial Court in that

regard. It is indeed a matter of concern as to why the Trial

Court failed to frame the issue which was very

fundamental.

9. Having regard to the above, the First Appellate

court was justified in remanding the case back to the Trial

Court for framing an issue regarding the readiness and

willingness on the part of the plaintiff to perform his part

of contract. In so far the default on the part of the

defendant in not cross-examining the P.W.1 and not

entering the witness box, the First Appellate Court should

not have dealt with it liberally. In that view of the matter,

though the order passed by the First Appellate Court does

not deserve interference but yet the defendant cannot go

unpunished for the delay and the wastage of judicial time.

In that view of the matter, this appeal is disposed

off and the impugned Judgment and Decree passed by the

First Appellate Court in R.A.No.345/2016 is upheld but the

defendant shall pay a sum of Rs.10,000/- to the plaintiff as

costs on the next date of hearing.

The Trial Court shall endeavor to expedite the suit

which shall at any rate not exceed six months, from the

date of receipt of the certified copy of this Order. The Trial

Court is at liberty to fix the date of hearing as per its

convenience but the same shall not extend beyond the

time prescribed by this Court.

Sd/-

JUDGE

NBM