Dyamanagouda S/O Basanagouda ... vs Neelappagouda S/O Basanagouda ...
2022 Latest Caselaw 2543 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100387/2014 (S-P)

BETWEEN

DYAMANAGOUDA
S/O BASANAGOUDA BHARMAGOUDAR
AGED ABOUT 66 YEARS, OCC: AGRICULTURE,
R/O. GADGOLI, TQ: RON,
DIST: GADAG-582 209.
                                            ... APPELLANT
(BY SRI SHIVAKUMAR S.BADAWADAGI, ADV.)

AND

NEELAPPAGOUDA
S/O BASANAGOUDA HANAMANTAGOUDARA
AGED ABOUT 50 YEARS, OCC: AGRI.,
R/O. GADAGOLI, TQ: RON,
DIST: GADAG-582 209.
                                           ...RESPONDENT
(BY SRI B.V.SOMAPUR, ADV.)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 03.03.2014 PASSED
IN R.A.NO.22/2013 BY THE SENIOR CIVIL JUDGE, RON
CONSEQUENTLY SET ASIDE THE JUDGMENT AND DECREE
DATED 16.03.2013 PASSED IN R.A.NO.40/2013 BY THE CIVIL
JUDGE AT RON AND CONSEQUENTLY BE PLEASED TO DISMISS
THE SUIT FILED BY THE RESPONDENT PENDING ON THE FILE
OF CIVIL JUDGE, RON IN O.S.NO.40/2013 IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                               2




                     : JUDGMENT :

The captioned regular second appeal is filed by

unsuccessful defendant who is questioning concurrent

judgment and decree of the Courts below, wherein the

suit filed by the respondent-plaintiff seeking relief of

specific performance of contract is allowed and relief

of specific performance is granted and directed the

present appellant to execute sale deed by receiving

balance sale consideration of Rs.25,000/-.

2. The facts leading to the above said case

are as under:

Respondent-plaintiff filed a suit for specific

performance of contract by contending that the

appellant-defendant has executed an agreement to

sell on 04.10.1993 for sale consideration of

Rs.35,000/-. It is also pleaded that the respondent-

plaintiff paid a sum of Rs.10,000/- as an earnest

money and possession was delivered to respondent-

plaintiff pursuant to suit agreement. It is also pleaded

that the parties have agreed to execute sale deed

after appellant-defendant approaches the authority

and seeks conversion of the old tenure, thereby

seeking permission to alienate the suit land. The

respondent-plaintiff further pleaded that appellant-

defendant having received earnest money of

Rs.10,000/-, however went on postponing and failed

to perform his part of contract. This compelled the

respondent to issue a legal notice on 01.08.1996.

Since the appellant-defendant failed to come forward

to perform his part of contract, respondent-plaintiff

was compelled to file a suit for specific performance of

contract on 28.09.1996.

3. The appellant-defendant on receipt of

summons, contested the proceedings and specifically

contended that he was in need of financial assistance

and therefore he borrowed hand loan of Rs.10,000/-

from respondent-plaintiff and the suit agreement was

executed as a collateral security towards the hand

loan of Rs.10,000/-. The appellant-defendant

specifically contended that it was nominal agreement

to sell and there was no intention on the part of the

appellant-defendant to alienate the suit schedule

property. Therefore, the very transaction was

seriously disputed by appellant-defendant.

4. The Trial Court on examination of oral and

documentary evidence adduced by the respondent-

plaintiff proceeded to answer issue Nos.1 to 3 in the

affirmative and held that the respondent-plaintiff has

proved the suit agreement and also payment of

earnest money. While examining Issue No.3, the Trial

Court has recorded a categorical finding that the

respondent-plaintiff has succeeded in proving his

readiness and willingness to perform his part of

contract. On these set of reasonings, the suit came to

be decreed.

5. Feeling aggrieved by the judgment and

decree of the Trial Court, the appellant-defendant

preferred an appeal before the First Appellate Court.

The first grievance which was ventilated before the

First Appellate Court by the appellant-defendant is

that the judgment and decree passed by the Trial

Court is in gross violation of principles of natural

justice. The appellant-defendant specifically contended

that the suit filed by respondent-plaintiff was

dismissed for non prosecution and miscellaneous

application filed by the respondent-plaintiff seeking

restoration was also dismissed, which was questioned

in M.A.No.2/2008. The appellant-defendant contended

that the First Appellate Court allowed the appeal and

restored the suit. But however, while restoring the

suit, the First Appellate Court directed the plaintiff to

adduce his evidence and closed his side preceeding

two next date of hearing. The present appellant-

defendant was also directed to cross-examine on the

same day or on the second day of hearing. The

appellant-defendant was also called upon to complete

his evidence and close his side within next two dates

of hearing. The plaintiff was also directed to cross

them immediately. The Appellate Court while allowing

miscellaneous appeal, directed the parties to appear

on 11.02.2013. The Appellate Court while allowing

miscellaneous appeal has specifically directed the Trial

Court that any lapse on compliance would be viewed

seriously and necessary stringent order was to be

passed, in the event default by either of the parties.

6. Referring to these dates, the appellant-

defendant specifically argued before the First

Appellate Court that within a short span, the Trial of

the suit was concluded. Therefore, the appellant-

defendant absolutely had no opportunity to defend his

case. Therefore, the appellant-defendant contended

that the judgment and decree of the Trial Court is in

gross violation of principles of natural justice. This has

resulted in miscarriage of justice as appellant-

defendant was denied an opportunity to defend his

case.

7. The First Appellate Court however having

independently assessed oral and documentary

evidence and having also taken judicial note of the

grievance addressed by appellant-defendant in regard

to denial of opportunity, however negatived the stand

taken by appellant-defendant in regard to fair trial.

The First Appellate Court was of the view that when

M.A.No.2/2008 was disposed of, the appellant-

defendant was represented by a counsel and therefore

the appellant-defendant cannot complain that he was

not notified of disposal of miscellaneous appeal.

8. The First Appellate Court has also taken

judicial note of the fact that the counsel who had

represented for appellant-defendant before the First

Appellate Court in M.A.No.2/2008 also continued to be

the counsel in O.S.No.40/2013. The First Appellate

Court has taken judicial note of the fact that the

counsel who had appeared in the miscellaneous

appeal had made a submission before the Trial Court

that he is going to retire from the case and same is

evident from the order sheet dated 20.02.2013. The

First Appellate Court has also taken judicial note of

the fact that in compliance of the order passed by the

First Appellate Court in M.A.No.2/2008, respondent-

plaintiff deposited the cost imposed by the First

Appellate Court in M.A.No.2/2008. The order sheet

dated 11.02.2013 was taken note of and First

Appellate Court found that a sum of Rs.3,000/- in

compliance was deposited on the same day. The

Appellate Court has further taken cognizance of the

conduct of respondent-plaintiff who has tendered his

evidence and got the documents marked as Exs.P.1 to

3 and the matter was posted for cross-examination at

the request of Sri I.M.Kuriyavar Advocate who is one

of the junior advocates of V.A.Dindur. The matter

stood adjourned till 01.03.2013 and it was only on

fourth date of hearing, plaintiff's side evidence was

closed and case was posted for defendant's evidence

by 06.03.2013. It was only on 12.03.2013 and

ultimately on 16.03.2013, the suit came to be

disposed of by taking evidence on behalf of appellant-

defendant as nil.

9. It is in this background, the Appellate Court

has come to conclusion that that the theory set up by

the appellant-defendant that he was not aware of

disposal of miscellaneous appeal is misconceived and

the same is contrary to the records. The First

Appellate Court has negatived the contention of the

appellant-defendant that they were not offered fair

opportunity and in absence of a fair trial suit came to

be decreed.

10. Now coming to the merits of the case, the

Appellate Court having independently assessed oral

and documentary evidence and also having examined

the ocular evidence of PWs.2 & 3, has come to

conclusion that the respondent-plaintiff has succeeded

in proving the due execution of suit agreement and

has also succeeded in proving that the appellant-

defendant intended to sell the suit land and it is in this

background the suit agreement came to be executed

by receiving an earnest money of Rs.10,000/- and

possession was also delivered pursuant to suit

agreement.

11. The First Appellate Court on re-appreciation

of oral and documentary evidence has also recorded a

categorical finding that respondent-plaintiff has also

succeeded in proving his readiness and willingness to

perform his part of contract. On these set of

reasonings the First Appellate Court has proceeded to

dismiss the appeal. It is against this concurrent

judgment and decree of the Courts below the present

appeal is filed by defendant.

12. Learned counsel appearing for the

appellant would vehemently argue and contend before

this Court that the Trial Court has hurriedly proceeded

to decide the case without affording any opportunity

to the present appellant-defendant. He would submit

to this Court that, his client was not at all aware of

disposal of miscellaneous appeal by the Appellate

Court. He would submit that his client was also not

aware that the Appellate Court while disposing

M.A.No.2/2008 had issued certain directions to the

respondent-plaintiff as well as present appellant-

defendant. He would further submit that the Trial

Court has virtually denied fair opportunity to

appellant-defendant and this has resulted in

miscarriage of justice and therefore substantial

question of would arise for consideration in the

present case on hand as trial is totally one sided and

in absence of contest by appellant-defendant. Trial

Court has casually accepted bald contentions averred

in the plaint and in the ocular evidence. Therefore, the

First Appellate Court ought to have interfered with the

judgment and decree of the Trial Court. He would

submit to this Court that the Appellate Court has

mechanically concurred with the judgment and decree

of the Trial Court and therefore warrants interference

at the hands of this Court.

13. Per contra, learned counsel appearing for

the respondent-plaintiff taking this Court through the

elaborate judgment rendered by the First Appellate

Court would bring to the notice of this Court that

disposal of MA.No.2/2008 was well within the

knowledge of appellant-defendant. Therefore, the

Appellant-defendant who has chosen to sit on the

fence cannot be now permitted to contend that fair

opportunity was not given to him.

14. The concurrent judgment and decree of the

Courts blow in granting discretionary relief of specific

performance cannot be re-appreciated and revaluated

by this Court under Section 100 of CPC and therefore

she would submit to this Court, no substantial

question of law arises and accordingly prays for

dismissal of appeal.

15. Heard learned counsel appearing for the

appellant and learned counsel appearing for the

respondent and perused the judgments under

challenge.

16. Respondent-plaintiff claims that the

appellant-defendant offered to sell the suit land and

accordingly executed suit agreement on 04.10.1993

for sale consideration of Rs.35,000/-. Respondent-

plaintiff further claims that appellant-defendant

received a sum of Rs.10,000/- on the date of

execution of suit agreement and consequently the

appellant-defendant delivered possession with an

assurance that he would seek permission from the

authorities to sell the land. The agreement is dated

04.10.1993. Respondent-plaintiff has issued notice on

01.08.1996 and suit is filed on 28.09.1996. In support

of his contention, the respondent-plaintiff has

examined two witnesses; PW.3 is the attesting witness

to the suit agreement. Now if the conduct of

appellant-defendant is examined in the present case

on hand, this Court would find that he has not chosen

to issue a reply notice to the legal notice issued by the

respondent-plaintiff. Therefore, at the very first

instance there was laxness on the part of the

appellant-defendant. If at all the suit agreement was

executed towards a loan transaction, it was incumbent

on the part of the appellant-defendant at the first

instance to issue reply notice and refute all the

allegations made in the legal notice. The right to

dispute the suit agreement was conveniently waved

off by appellant-defendant by not issuing a reply

notice.

17. Admittedly, there is no dispute in regard to

execution of suit agreement. The only defence set up

by appellant-defendant is, it was executed as a

collateral security towards hand loan of Rs.10,000/-.

Though the appellant-defendant placed reliance that

the legal notice was not served and it was returned

un-served would also not come to the aid of appellant-

defendant. If the legal notice was issued at the correct

address, it is to be presumed that the appellant-

defendant had constructive notice. It is not the case of

appellant-defendant that respondent-plaintiff has

deliberately issued legal notice by giving incorrect

address.

18. The contention of appellant-defendant that

a fair opportunity was not afforded is dealt in detail by

the First Appellate Court. The First Appellate Court has

taken pain in meticulously examining minute details

which are culled out by this Court while referring to

the reasons assigned by the First Appellate Court.

What this Court has to bear in mind is that the

appellant-defendant and respondent-plaintiff are

agriculturist. What was agreed to be purchased was a

dry land measuring 1 acre 30 guntas out of total

extent measuring 5 acres 9 guntas in Sy.No.137/06.

The appellant-defendant after receipt of Rs.10,000/-

has delivered possession. Therefore, respondent-

plaintiff is in possession since 1993. Both the Courts

have concurrently held that the suit agreement is

proved and readiness and willingness is also

established.

19. Though a feeble attempt is made by

appellant-defendant by contending that this document

was executed only by way of collateral security, but

however, the appellant-defendant has not chosen to

contest the proceedings. The counsel who had

appeared on behalf of appellant-defendant in

M.A.No.2/2008 was in fact representing him in the

suit. The very counsel sought time expressing to the

Court that he intends to retire from the case.

Therefore, what can be gathered from the material on

record is that the appellant-defendant was not

interested in defending the case. The counsel who had

appeared for appellant-defendant in the suit has even

appeared on subsequent dates after disposal of

MA.No.2/2008. The grievance that there was no fair

opportunity cannot be acceded to, and the said

contention is contrary to the records.

20. The concurrent findings of the Courts below

in granting relief of specific performance do not suffer

from any infirmities or illegalities. No substantial

question of law arises. The appeal is devoid of merits

and accordingly the same stands dismissed.

SD/-

JUDGE EM