Karnataka High Court
Ramamurthy S/O Ningappa Uppar vs Siddanagouda S/O Ninganagouda ... on 18 February, 2022
Bench: Sachin Shankar Magadum
THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.S.A.NO.100012/2021
BETWEEN
RAMAMURTHY
S/O NINGAPPA UPPAR,
AGE 57 YEARS, OCC AGRI.,
R/O. HAMMAGI ,
TQ: MUNDARAGI
DIST GADAG-582 101.
... APPELLANT
(BY SRI LAXMAN T.MANTAGANI, ADV.)
AND
1. SIDDANAGOUDA
S/O NINGANAGOUDA ATTIMARAD,
AGE 44 YEARS, OCC AGRI.,
R/O N.M.TADAS,
TQ.SHIGGAON,
DIST: HAVERI-581 110.
2. KU.SOUBHAGYALAXMI
D/O SIDDANAGOUDA ATTIMARAD,
AGE: 14 EYARS,
OCC: STUDENT,
R/O N.M.TADAS,
TQ: SHIGGAON
DIST: HAVERI-581110.
3. KU.SAVITRI
2
D/O. SIDDANAGOUDA ATTIMARD
AGE 12 YEARS,
OCC STUDENT,
R/O N.M.TADAS,
TQ: SHIGGAON,
DIST: HAVERI-581110.
4. KUM. NINGANAGOUDA
S/O. SIDDANAGOUDA ATTIMARAD,
AGE 11 YEARS,
OCC: STUDENT,
R/O. N M TADAS,
TQ: SHIGGAON,
DIST: HAVERI-581110.
... RESPONDENTS
(BY SRI CHANDRASHEKHAR M.HOSAMANI, ADV. )
THIS MISCELLANEOUS SECOND APPEAL IS FILED
SECTION XLIII RULE 1(U) READ WITH SECTION 104 OF CPC,
PRAYING TO CALL FOR RECORDS AND ON PERUSAL BE PLEASED
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
COURT FIRST ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
HAVERI DATED 20.04.2021 IN RA.NO.206/2019 SETTING ASIDE
THE JUDGMENT AND DECREE PASSED BY THE COURT OF
SENIOR CIVIL JUDGE AND JMFC, SHIGGAON DATED 29.08.2019
IN OS NO. 176/2017 (OLD OS NO.191/2014) AND REMINDING
THE MATTER TO TRIAL COURT FOR ADJUDICATION AFTER
RECASTING OF THE ISSUES AND ALLOW THE MEMORANDUM OF
MISC. SECOND APPEAL WITH COSTS, IN THE INTEREST OF
JUSTICE AND EQUITY
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
: JUDGMENT :
The captioned miscellaneous second appeal is
filed by the plaintiff questioning the remand order
passed by the First Appellant Court in
R.A.No.206/2019.
2. Fact leading to the above said case are as
follows:
The present appellant-plaintiff herein filed a suit
for specific performance of contract in
O.S.No.176/2017. The appellant-plaintiff claims that
respondents-defendants are owners of the land
bearing Sy.No.94/3 totally measuring 1 acre 34
guntas. The appellant-plaintiff further contended that
respondent No.1-defendant No.1 expressed his
intention to sell the property and accordingly offered
to sell suit schedule property for sale consideration of
Rs.10,00,000/-. Appellant-plaintiff further contended
that he agreed to purchase the suit schedule property
and accordingly entered into an agreement to sell by
paying an earnest money of Rs.8,00,000/- by way of
cash to respondent No.1 in the presence of witnesses.
3. Appellant-plaintiff further contended that
balance sale consideration of Rs.2,00,000/- was
agreed to be paid at the time of registration. The
grievance of appellant-plaintiff is that in-spite of
repeated requests, respondent No.1-defendant No.1
did not come forward to perform his part of contract
and execute sale deed by receiving balance sale
consideration of Rs.2,00,000/-. This compelled the
appellant-plaintiff to issue legal notice on 21.06.2014
calling upon respondent No.1-defendant No.1 to
receive balance sale consideration and execute the
sale deed. Since respondent No.1-defendant No.1
denied the very execution of suit agreement, the
appellant-plaintiff was compelled to file a suit for
specific performance of contract in O.S.No.176/2017.
4. The respondents-defendants contested the
proceedings and stoutly denied the entire averments
made in the plaint.
5. The appellant-plaintiff to corroborate and
substantiate his claim examined three witnesses on his
behalf and relied on documentary evidence vide
Exs.P.1 to P.10. The respondents-defendants
examined one witness as PW.1 and relied on rebuttal
documentary evidence as Ex.D.1 to D.7.
6. The Trial Court having assessed oral and
documentary evidence was of the view that appellant
has succeeded in proving due execution of suit
agreement. However answered issue No.3 in the
negative by recording a finding that the appellant-
plaintiff has failed to prove his readiness and
willingness. The trial Court was also of the view that
defendant No.1 is not the absolute owner of the suit
schedule property and therefore the appellant-plaintiff
is not entitled to discretionary relief of specific
performance of contract. Therefore, ordered for refund
of earnest money of Rs.8,00,000/- with 12% interest.
7. Against the dismissal of larger relief, the
appellant-plaintiff has not challenged the judgment
and decree of the Trial Court and therefore the decree
insofar as declining the relief of specific performance
of contract has attained finality. It is respondent No.1-
defendant No.1 feeling aggrieved by the order of
refund preferred an appeal before the First Appellate
Court.
8. The First Appellate Court has set aside the
judgment and decree of the Trial Court and ordered
for remand with a direction to frame appropriate
issues.
9. On perusal of the judgment and decree of
the Trial Court, this Court would find that the First
Appellate Court has failed to exercise its duty of
Appellate Court. It is a trite law that an appeal under
Section 96 read with Order XLI Rule 1 and 2 of CPC is
a continuation of a suit and the First Appellate Court
hearing an appeal under Section 96 of CPC is a final
fact finding authority. Time and again this Court in
catena of judgment has been discouraging the practice
of casual remand by the First Appellate Court. This
case is also one of that kind where on bare perusal of
the reasons assigned by the First Appellate Court, it is
found that this order is passed in a very casual
manner. The First Appellant Court has come to
conclusion that appropriate issues are not framed,
however same does not find place in the judgment of
the First Appellate Court. If the First Appellate Court
was of the view that the appropriate issues are not
framed, the same ought to have been framed by First
Appellate Court. Therefore, without framing issues
that would arise out of rival contentions in context of
pleadings averred in the plaint and written statement
the remand order passed by the First Appellate Court
is contrary to the provisions of Order XLI Rule 23A of
CPC.
10. It is a trite law that when a remand order
was passed by the First Appellate Court, it has to meet
out the reasons and conclusions recorded by the Trial
Court on all the issues. It is only when the findings
and conclusions of the Trial Court are held to be
erroneous, in an exceptional case where it is totally
inevitable and therefore the facts warrants remand, in
only such cases, the First Appellate Court can remand
the matter with a direction for de novo trial. On
perusal of the material on record, this Court would find
that no such materials were placed on record to make
out a case for remand.
11. I have also examined the issues framed by
the Trial Court in a suit for specific performance of
contract. The Trial Court is required to frame issue on
due execution of suit agreement, readiness and
willingness and also an issue relating as to whether
plaintiff is entitled for discretionary relief of specific
performance of contract. In the present case on hand,
this Court would find that the Trial Court has
formulated all requisite issue that would arise in a suit
for specific performance of contract. Therefore I am
unable to understand as to what are other relevant
issues that were required to be formulated in the
present case on hand. Therefore, the finding of the
First Appellate Court that the proper issues are not
framed is palpably erroneous. The remand order does
not satisfy the requisite ingredients. In that view of
the matter, I am of the view that the remand order
passed by the First Appellate Court is liable to be set
aside.
12. For the foregoing reasons, I pass the
following :
ORDER
The miscellaneous second appeal is
hereby allowed and remanded.
The judgment and decree dated
20.04.2021 passed in R.A.No.206/2019
passed by the I Additional District &
Sessions Judge at Haveri is hereby set
aside. The matter is remitted to the First
Appellant Court for fresh consideration. The
First Appellate Court shall decide matter on
merits.
Since the parties are represented
their respective counsel, without expecting
any further notice, the parties to the
present appeal are directed to appear
before the First Appellate Court along with
their respective counsel on 21.03.2022.
SD/-
JUDGE
EM
