Gurappa @ Rajashekarappa vs Basavarajn S/O Chennappa ...
2021 Latest Caselaw 3571 Kant

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               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 8TH DAY OF NOVEMBER 2021

                            BEFORE

        THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

                     R.S.A.NO.5208 OF 2008

BETWEEN

1.     GURAPPA @ RAJASHEKARAPPA,
       S/O FAKIRAPPA PILLI,
       SINCE DECEASED BY HIS LRS

1(A)   BASAVARAJAPPA S/O FAKKIRAPPA PILLI
       AGED ABOUT: 45 YEARS,
       OCC: AGRICULTURE,
       R/O: LAXMESHWAR,
       SHIRAHATTI TALUK,
       GADAG DISTRICT.
                                                ...APPELLANTS
(BY SRI. BASAVARAJ BANNUR, ADV.,
AND SRI. PRUTHVI K S., ADV.,)

AND
BASAVARAJ S/O CHENNAPPA NELAVAGI
AGE: MAJOR, OCC AGRICULTURE,
R/O: LAXMESHWAR,
TQ: SHIRAHATTI, DIST: GADAG.
                                                ...RESPONDENT
(BY SRI. SADIQ N GOODWALA, ADV.,)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE
JUDGMENT     AND    DECREE   DATED   29.07.2008   PASSED   IN
R.A.NO.46/2004 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
(SR.DN) GADAG, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT     AND    DECREE   DATED   27.08.2009   PASSED   IN
O.S.NO.147/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND
JMFC, LAXMESHWAR, PARTLY DECREEING THE SUIT FILED FOR
SPECIFIC PERFORMANCE OF CONTRACT.
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     THIS RSA COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal under section 100 of the Code of Civil

Procedure is filed against the judgment and decree dated

29.07.2008 passed by the Additional Civil Judge (Sr.Dn) Gadag

in R.A.No.46/2004 reversing the judgment and decree dated

27.08.2003 passed by the Civil Judge (Jr.Dn) and JMFC,

Laxmeshwar in O.S.No.147/1992.

2. Parties are referred as per their ranks before the trial

court for the sake of convenience.

3. The defendant is in appeal. Plaintiff filed a suit for

specific performance of agreement of sale dated 13.12.1989.

The plaint averments in brief are that the defendant, who is the

owner of the suit property, executed agreement of sale in favour

of the plaintiff agreeing to sell the suit property for total sale

consideration of Rs.30,000/- and out of the same, Rs.21,000/-

was paid as an advance sale consideration, the receipt of which

was duly acknowledged by the defendant. It was further

contended that though the plaintiff was ready and willing to

perform his part of contract to get the registered sale deed

executed by paying balance sale consideration amount of

Rs.9,000/- to the defendant, the defendant was not ready to

perform his part of contract to execute registered sale deed in

favour of the plaintiff by receiving the balance sale

consideration. Hence, the suit.

4. The defendant filed written statement denying the

execution of agreement of sale in favour of the plaintiff and also

denied that there was any financial constraint on the part of the

defendant so as to sell the suit property to the plaintiff. It was

further contended that the defendant has not received a sum of

Rs.21,000/- towards advance sale consideration. It was further

contended that the plaintiff is an Excise Contractor and he

supplied liquor to the defendant as and when required and he

had paid some amount to the defendant towards supply of

alcohol. Hence, sought for dismissal of the suit.

5. The trial court on the basis of the pleadings of the

parties, framed issues and recorded evidence of the parties. The

plaintiff in order to prove his case, examined his GPA holder as

PW1 and two other witnesses as PW2 and PW3 and marked

documents as per Ex.P1 to Ex.P17. The defendant, to

substantiate his claim examined DW1 and marked Ex.D1. The

trial court after examining the evidence on record, recorded a

finding that the plaintiff has failed to prove that the defendant

had executed an agreement of sale in his favour, but however

directed to refund Rs.21,000/- with interest at the rate of 6%

per annum to the plaintiff in view of categorical admission of

defendant that the plaintiff has paid certain amount to him when

he was under the influence of intoxication. Taking exception to

the same, defendant filed regular appeal before the first

appellate court.

6. The first appellate court, after re-appreciating the

evidence on record, reversed the finding recorded by the trial

court by holding that the plaintiff has proved the execution of

agreement of sale in his favour by the defendant and further

decreed the suit for specific performance. Being aggrieved, the

plaintiff is in appeal.

7. Learned counsel for appellant submits that the first

appellate court was not justified in accepting the evidence

tendered by PW1, who is GPA holder of the plaintiff and who has

not participated in the alleged transaction and in the absence of

personal knowledge of the transaction, the evidence tendered by

PW1 cannot be looked into. He further submitted that the

plaintiff has not proved execution of agreement of sale as per

mandate contained under section 61 of the Indian Evidence Act.

He further submitted that the plaintiff has not proved that he

was always ready and willing to perform his part of contract.

However, the first appellate court ignoring these material

aspects, has passed impugned judgment and decree which is not

sustainable in law and same requires to be set aside.

8. On the other hand, learned counsel for the defendant

submitted that the first appellate court after re-appreciating the

evidence on record in a proper perspective has passed the

impugned judgment and decree and the same is perfectly legal

and does not warrant any interference.

9. I have considered the submissions made by the

learned counsel for parties and perused the material on record.

10. The question of law that arises for consideration in

this appeal is :

"Whether the first appellate court was justified in decreeing the suit for specific performance on the basis of the evidence tendered by the GPA Holder of the plaintiff, who had no personal knowledge of the transaction?"

11. The plaintiff filed a suit for specific performance of

agreement of sale dated 13.12.1989. Though he filed the suit,

he executed power of attorney in favour of PW1 to tender

evidence on his behalf. The GPA holder was examined as PW1

and in the cross-examination, he has specifically stated that he

has not participated in the transaction nor he has any personal

knowledge of the transaction or dealings of the plaintiff and

defendant. The trial court considering these aspects, held that

the plaintiff has failed to prove that the defendant executed

agreement of sale in his favour. However, the first appellate

court without considering this aspect, reversed the finding

recorded by the trial court and decreed the suit.

12. The Hon'ble Apex Court in the case of Man Kaur v.

Hartar Singh Sangha reported in (2010) 10 SCC 512 has

summarized for convenience, the position as to who should

give evidence in regard to matters involving personal

knowledge.

"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.

(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authroised managers/attorney-holder or persons residing abroad managing their affairs through their attorney-holders.

(e) where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to

give evidence and not an attorney- holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son- daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."

13. In view of the principles enunciated by the Hon'ble

Apex Court in Man Kaur (supra), the attorney holder cannot

depose or give evidence in place of his principal for the acts done

by the principal or transactions or dealings of the principal, of

which principal alone has personal knowledge. In the present

case, the GPA holder, who was examined as PW1, has

categorically admitted that he was not present at the time of

transaction nor he has personal knowledge with regard to

transaction between the plaintiff and the defendant.

14. The GPA holder was not competent to tender his

evidence on behalf of the plaintiff. Hence, in the absence of

evidence, the first appellate court was not justified in reversing

the judgment and decree passed by the trial court.

15. In view of the preceding analysis, the impugned

judgment and decree passed by the first appellate court is not

sustainable in law and same requires to be set aside.

16. The defendant having admitted the receipt of

Rs.21,000/- way back in the year 1981, it would be appropriate

to direct the defendant to refund the amount of Rs.21,000/- with

interest at the rate of 18% per annum from the date of filing of

the suit. Hence, the following:

ORDER

The appeal is allowed.

The judgment and decree dated 29.07.2008 passed by the Civil Judge (Sr.Dn) Gadag in R.A.No.46/2004 is set aside and the judgment and decree passed by the court of Civil Judge (Jr.Dn) and JMFC, Laxmeshwar in O.S.No.147/1992 is modified to the extent that the defendant is directed to refund

the amount of Rs.21,000/- to the plaintiff with interest at the rate of 18% per annum from the date of institution of the suit till actual deposit.

Sd/-

JUDGE yan