Sri Hanumantha Reddy vs Srinivasa Reddy
2022 Latest Caselaw 9813 Kant

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28 TH DAY OF JUNE, 2022

                       BEFORE

  THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

            R.F.A.NO.1193 OF 2021 (SP)
BETWEEN
SRI. HANUMANTHA REDDY
SON OF LATE GANGI REDDY,
AGED ABOUT 51 YEARS, AGRICULTURIST,
RESIDING AT JILLAJIRLA VILLAGE,
GULUR HOBLI, BAGEPALLI TALUK,
CHIKKABALLAPURA DISTRICT,
KARNATAKA-561 207.
                                            ...APPELLANT
(BY SRI. S. VENUGOPALA, ADVOCATE)

AND

SRI. SRINIVASA REDDY
SON OF GOVINDA REDDY,
AGED ABOUT 43 YEARS, AGRICULTURIST,
RESIDING AT S KOTHAPALLI,
CHILAMATHUR MANDALAM,
HINDUPUR TALUK,
ANANTHAPURAMU DISTRICT,
ANDRA PRADESH-515 211.
                                          ...RESPONDENT
(BY SRI. A.C. CHETHAN, ADVOCATE )

     THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.09.2021
PASSED IN OS.No.164/2019 ON THE FILE OF THE SENIOR CIVIL
JUDGE, BAGEPALLI, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE OF CONTRACT.
     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THROUGH PHYSICAL HEARING, THE COURT DELIVERED THE
FOLLOWING:
                                2

                         JUDGMENT

This appeal by the defendant in

O.S.No.164/2019 is directed against the impugned

judgment and decree dated 24.09.2021 passed in

O.S. No.164/2019 by the Senior Civil Judge, Bagepalli

(for short "the trial Court') whereby the said suit for

specific performance and other reliefs in respect of the

suit schedule immovable property was decreed by the

trial Court in favour of the respondent-plaintiff against

the appellant defendant.

2. Heard learned counsel for the petitioner,

learned counsel for the respondent and perused the

material on record.

3. A perusal of the material on record

indicates that the respondent-plaintiff instituted the

aforesaid suit for specific performance of an alleged

Agreement to Sell dated 16.07.2016 said to have

been executed by the appellant-defendant in favour of

the respondent-plaintiff in respect of the suit schedule

property. The appellant-defendant having filed his

written statement, the trial Court framed the following

issues:

1. Whether the plaintiffs prove that the defendant has agreed to sell the suit schedule property in favour of the plaintiff for consideration of Rs.10,32,500/- and plaintiff and defendant have entered into an agreement of sale on 16.07.2016 and the defendant has received an earnest money of Rs.1,32,500/-?

2. Whether the plaintiff proves that, defendant has agreed to executed sale deed within 3 months from the date of execution of agreement of sale by obtaining necessary documents?

3. Whether the plaintiffs has been always ready and willing to perform his part of contract?

4. Whether the defendant proves that, the alleged agreement of sale is created one?

5. Whether the plaintiff is entitled for the relief as sought?

6. What order or decree?

4. In pursuance of the same, the plaintiff

examined himself as PW.1 and three witnesses as

PWs.2 to 4 and the documentary evidence at Exs.P-1

to P-8 were marked on his behalf. The appellant-

defendant neither cross-examined the plaintiff and his

witnesses nor adduced any defence evidence. The trial

Court took into account the material on record and

proceeded to decree the suit in favour of the plaintiff,

aggrieved by which the appellant-defendant is before

this Court by way of the present appeal.

5. Though several contentions have been

urged by both sides in support of their respective

claims, the main contention urged on behalf of the

appellant is that on account of the Covid-19 pandemic

exigency due to which the proceedings before the trial

Court could not resume coupled with the inability and

omission on the part of the appellant to attend the

Court on the dates of hearing fixed by it, the trial

Court took the cross-examination of PWs.1 to 4 as

well as the evidence of the appellant as nil and has

passed the impugned judgment and decree. It is

contended that the appellant-defendant has a good

case to urge on merits and the balance of convenience

is in his favour and it is necessary that an opportunity

is granted in favour of the appellant to defend the suit

on merits failing which, the appellant would be put to

irreparable injury and hardship and justice would

suffer.

6. Per contra, it is the respondent's contention

that there is no merit in the appeal and that the same

is liable to be dismissed.

7. The only point that arises for consideration

is whether another opportunity has to be granted in

favour of the appellant-defendant to defend the suit

on merits by setting aside the impugned judgment

and decree and remitting the matter back to the trial

Court for reconsideration afresh.

8. The material on record indicates that the

suit was posted before the trial Court on 27.03.2020

for cross-examination of PW.1; it is needless to state

that at that time, lockdown had been imposed on

account of covid-19 pandemic exigency. Though the

grounds urged in the appeal with regard to the

absence of the appellant-defendant during the period

of lockdown and subsequently up to the date of the

impugned judgment and decree might not have been

happily worded, suffice it to state that in the light of

the undisputed fact that during the period from

27.03.2020 up to 24.09.2021 when the trial Court

proceeded with the suit and passed the impugned

judgment and decree, the Covid-19 pandemic was

prevailing in the entire country coupled with the

specific assertion on the part of the appellant that his

inability and omission to contest the suit on merits by

cross-examining PWs.1 to 4 and adducing evidence on

his behalf was due to bonafide reasons, unavoidable

circumstances and sufficient cause, by adopting a

justice oriented approach and in order to give one

more opportunity to the appellant to defend the suit

and put forth his claim on merits, without expressing

any opinion on the merits/demerits of the rival

contentions, I deem it just and proper to set aside the

impugned judgment and decree and remit the matter

back to the trial Court for re-consideration afresh in

accordance with law.

9. In the result, I pass the following:

ORDER

i. The Appeal is hereby allowed.

ii. The impugned judgment and decree

dated 24.09.2021 passed in O.S.

No.164/2019 on the file of the Senior

Civil Judge, Bagepalli is hereby set

aside and the matter is remitted back

to the trial Court for reconsideration

afresh in accordance with law.

iii. Liberty is reserved in favour of the

appellant and respondent to examine

the opposite side as well as his

witnesses; both parties undertake to

appear before the trial Court on

25.07.2022 without awaiting further

notice from the trial Court.

iv. The trial Court is directed to dispose of

the suit on merits as expeditiously as

possible at any date, within a period of

one year from 25.07.2022.

v. All rival contentions between the

parties are kept open and no opinion is

expressed on the same.

Sd/-

JUDGE

JY/BMC