Karnataka High Court

Smt.Mallubai W/O Dharmaji ... vs Nagappa S/O Appanna Kanakikodi on 30 March, 2022

Bench: Ravi V.Hosmani

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

       DATED THIS THE 30 T H DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

              M.S.A. NO.100131/2017 (RO)
BETWEEN

SMT.MALLUBAI W/O DHARMAJI SHERAKHANE
AGE: 57 YEARS, OCC: HOUSEHOLD AND AGRICULTURE,
R/O: MUDHOL, DI ST: BAGALK OTE-587101.
                                          ...APPELLANT
(BY SRI.PAVAN B. DODDATTI, ADV.)

AND

NAGAPPA S/O APPANNA KANAKIKODI
SINCE DECEASED BY HIS LRS.

1(a) SMT.SIDDAVVA W/O. NAGAPPA KANAKIKODI,
     SINCE DECEASED BY HER LRS. 1(b) TO 1(d)

1(b) KAREPPA S/O. NAGAPPA KANAKIKODI,
     AGE: 37 YEARS, OCC. AGRI CULT URE,
     R/O. HARUGERI VI LLAGE, TQ. RAIBAG,
     DIST. BELAGAVI .

1(c) SANGEETA D/O. NAGAPPA KANAKIK ODI,
     AGE: 29 YEARS, OCC. HOUSEHOLD WORK,
     R/O. HARUGERI VI LLAGE, TQ. RAIBAG,
     DIST. BELAGAVI .

1(d) VITTAL S/O. NAGAPPA KANAKIKODI,
     AGE: 27 YEARS, OCC. AGRI CULT URE,
     R/O. HARUGERI VI LLAGE, TQ. RAIBAG,
     DIST. BELAGAVI .
                                          ...RESPONDENTS
(BY SRI.GIRISH A. YADAWAD, ADV. FOR R1(b) TO R1(d),
R1(b) TO R1(d) ARE LRS. OF R1(a))
                                    2


     THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DATED 09.08.2017
PASSED IN R.A. NO.57/2015 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC., MUDHOL, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 16.11.2015 PASSED IN O.S. NO.299/2010, ON THE FILE
OF THE PRL. CIVI L JUDGE AND JM FC., MUDHOL, DECREEING
THE SUIT FILED FOR SPECIFI C PERFORMANCE OF CONTRACT.

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

                            JUDGMENT

Challenging judgment and decree dated 09.08.2017

passed by Principal Senior Civil Judge and JMFC, Mudhol

(for short, "first appellate Court") in R.A. no.57/2015,

allowing appeal and setting aside judgment and decree

dated 16.11.2015 passed by Principal Civil Judge and

JMFC, Mudhol (for short, "trial Court") in O.S.

no.299/2010, decreeing suit filed for specific performance

of agreement for sale, this Regular Second Appeal is filed.

2. Appellant herein was plaintiff in suit and

respondent in first appeal, while respondent herein was

defendant in suit and appellant in first appeal. For the

sake of convenience, parties to this appeal are referred to

as per their ranks before trial Court.

3. Plaintiff filed O.S. no.299/2010 against

defendant for specific performance for agreement of sale

dated 19.10.2005 in respect of land bearing Sy. no.59/2

measuring 3 acres 9 guntas out of total 17 acres 26

guntas situated at Shirol village, Mudhol Taluk

(hereinafter referred to as 'suit property').

4. In the plaint, it was stated that defendant was

absolute owner of suit property having purchased it from

original owner Irappa Chikkur under registered sale deed

dated 01.08.1995. Thereafter, defendant intended to sell

it for his family necessities for Rs.1,80,000/-. Plaintiff

agreed to purchase it for said sum and an agreement of

sale was executed on 19.10.2005 wherein plaintiff paid

Rs.1,20,000/- to defendant as earnest money. As per

terms of agreement, plaintiff was put in possession and

defendant agreed to execute sale deed after disposal of

O.S. no.281/2005 pending before Civil Court, Raibag, by

receiving balance sale consideration. It was stated that

thereafter plaintiff spent huge amount towards leveling

land, drilling bore well and open well to irrigate it.

Thereafter, plaintiff demanded defendant to close the

litigation and execute registered sale deed. But,

defendant attempted to sell suit property to third parties.

Hence, plaintiff got issued legal notice dated 06.07.2010

calling upon defendant to perform his part of contract and

asserting that plaintiff was ready and willing to perform

her part of contract. Defendant refused notice and did not

come forward to execute sale deed. Therefore, plaintiff

was constrained to file suit.

5. Despite service of suit summons, defendant did

not enter appearance and file written statement. He was

placed ex-parte.

6. The trial Court framed following issues:

"1. Wh eth e r th e pla in tif f pr o v e s th e all eg ed e x ecu ti on o f ag r e e men t f o r sa l e e x ec u ted b y de f en d an t da t ed 1 9.1 0. 200 5 in r es p e ct of su it lan d ?

2. Wh eth e r th e pl ain ti ff p r ov e s th at , h e paid ea rn e st m on e y of Rs .1 ,20 ,0 00/- on

19. 10 .20 05 t o th e d e f en dan t?

3. Wh eth e r th e pla in ti ff p r o v es th at , sh e was alw ay s r e ad y an d wi llin g t o pe r f o rm h e r part o f c on t r a ct an d d e f en dan t h a s f ail e d to pe r f o rm it ?

4. Wh eth e r th e pl ain tif f is en t itl ed fo r th e r eli e f s ou g h t f o r in t h e pl ain t ?

5. Wh at o rd e r o r d e c r e e ?"

7. Thereafter, plaintiff got examined three

witnesses as PWs.1 to 3 and got marked Exhibits P1 to P7.

8. On consideration, trial Court answered issues

no.1 to 4 in affirmative and issue no.5 by decreeing suit

with cost and directing defendant to execute registered

sale deed in favour of plaintiff within 30 days from date of

decree. Plaintiff was directed to deposit balance sale

consideration within 30 days.

9. Assailing judgment and decree, defendant filed

R.A. no.57/2015 on several grounds. It was contended

that judgment and decree passed by trial Court was

contrary to law, evidence, facts and equities. It was

illegal, capricious and perverse. It was further contended

that trial Court failed to consider pleadings in proper

perspective and erred in holding that plaintiff had

established agreement of sale. Trial Court was also not

justified in holding that plaintiff established readiness and

willingness. It was also contended that recital in

agreement of sale about sale deed to be executed after

disposal of O.S. no.281/2005 pending on file of Principal

Civil Judge, Raibag, established that it was concocted, as

O.S. no.281/2005 was filed only on 05.12.2005 i.e. after

the date of agreement of sale. It was further contended

that there was no proper verification of legal necessity.

Trial Court also failed to note that agreement was not

lawful and there was no due attestation etc.

10. Based on above, first appellate Court framed

following points for its consideration:

"1 . Wh eth e r th e j u dg m e n t an d d e c r e e pa s s e d by th e tr ial c ou rt i n O .S . N o .2 99/2 010 dat ed

16. 11 .20 15 i s e r r on e ou s, ill eg al an d op po s e to l aw an d c all s f or in t e r f er e n c e o f th is Co u r t?

2. Wh eth e r th e j u dg m e n t an d d e c r e e pa s s e d by Pr l. Ci vil J u dg e an d JMF C , Mu dh ol in O .S . N o. 299/ 201 0 d at ed 16 .11 .20 15 i s fit to b e r em an d ed ?

3. Wh at o rd e r ?"

11. On consideration, first appellate Court answered

point Nos.1 to 3 in affirmative and point No.4 by allowing

appeal, setting aside judgment and decree passed by trial

Court and remanding matter back to trial Court for

reconsideration after giving opportunity to both parties

and to file clear pleadings and to prove their case in

accordance with law.

12. Aggrieved thereby, this Regular Second Appeal

is filed by plaintiff.

13. Sri.Pavan B. Doddatti, learned counsel for

appellant - plaintiff submitted that prior to filing of suit,

plaintiff had got issued a legal notice to defendant

informing him about his readiness and willingness and

calling upon defendant to perform his part of contract.

However, said notice was refused. Even in suit, defendant

did not enter appearance and contest, despite service of

summons. Thus, absolutely no material was available on

record to establish that agreement was illegal. It was

further submitted that while contending that there was no

proper consideration of fact that agreement of sale was

executed while defendant was in financial exigencies and

to meet pressing legal necessity, agreement of sale was

executed, had virtually admitted agreement of sale.

Ignoring said unequivocal admission, appellate court

passed impugned judgment and decree and remanded

matter back to trial court. It was submitted that no efforts

were made by defendant to produce material

substantiating hardship, even in appeal. Therefore, there

was no justification for remanding of matter by appellate

court.

14. On the other hand, Sri Girish Yadwad, learned

counsel for legal representatives of defendant sought to

justify impugned judgment and decree. It was submitted

that as per terms and conditions contained in agreement

of sale, sale deed was to be executed after disposal of

O.S.no.281/2005. But as per findings of first appellate

court, said suit was filed subsequent to date of alleged

agreement of sale, which clearly established that

agreement of sale was concocted. Under the

circumstances, first appellate court had found fit to

remand case back to trial court for fresh trial. In view of

the above, no interference was called for.

15. Heard learned counsel for plaintiff and

defendant, perused impugned judgment and decree and

records.

16. From the above, ownership of suit schedule

property by defendant is not in dispute. While plaintiff

contends that defendant had executed an agreement of

sale agreeing to sell suit property to plaintiff, defendant

denies very validity of agreement of sale.

17. In order to substantiate his case, plaintiff

examined his power of attorney as PW.1. Copy of power of

attorney was produced as Ex.P.1; agreement of sale dated

19.10.2005 was produced as Ex.P2; record of rights as

Exs.P3 and P4; office copy of legal notice dated

06.07.2010 as Ex.P5; postal receipt as Ex.P6 and postal

cover containing legal notice, returning unclaimed as

Ex.P7. PW.1 deposed that when defendant offered to sell

suit property, plaintiff agreed to purchase same for total

sale consideration of Rs.1,80,000/-. An agreement of sale

was executed on 19.10.2005 agreeing to executed sale

deed by receiving balance sale consideration of

Rs.60,000/-. But when he failed to come forward to

execute sale deed, even after issuance of legal notice,

plaintiff filed suit. Apart from PW.1, plaintiff examined

two other witnesses. One of attesting witness was

examined as PW.2. As scribe who drafted agreement of

sale had died, his son was examined as PW.3. PW.2

deposed about agreement. PW.3 admitted signature of his

father on Ex.P2.

18. Admittedly, defendant was placed ex-parte. In

the absence of any contrary material, trial court taking

note of evidence on recorded proceeded to decree suit.

19. Though defendant filed appeal, in memorandum

of regular appeal, he contended that agreement of sale

was executed while he was facing financial distress,

thereby admitting executing Ex.P2-agreement of sale. No

specific plea regarding hardship was urged nor any

material produced to substantiate the same.

20. Admittedly, trial court has proceeded to decide

suit on merits and not on a preliminary point. While

remanding matter, only reason assigned by first appellate

court was that a doubt arose as to how plaintiff came to

know about O.S.no.281/2005, four months prior to its

filing. When defendant himself had unequivocally admitted

execution of agreement of sale albeit under financial

distress, appellate court was not justified in delving into

issue anymore. In fact, issuance of direction to both

parties to put forth their case with clear cogent pleadings

would virtually render trial nugatory. Without any material

having been produced to establish that defendant was

prevented by any just cause from contesting suit and

leading evidence on his behalf, remanding of matter for

fresh trial would be a miscarriage of justice. In view of

Order XLI Rule 24 of Code of Civil Procedure, appellate

court would be required to pass judgment on merits after

re-appreciation of evidence and reasons assigned by trial

Court. The Hon'ble Supreme Court in case of Hameed v.

Kummottummal Kunhi P.P. Amma reported in (2007)

15 SCC 155, held that there cannot be a remand to

permit lacuna in evidence. In Syeda Rahimunnisa v.

Malan Bi reported in (2016) 10 SCC 315, it is held that

to claim remand of matter to trial court, it is necessary

for appellant to first raise such plea and then make out

case for remand on facts. In the absence of the above,

remand would not be justified. In Lisamma Antony v.

Karthiyayani reported in (2015) 11 SCC 782, it is held

that remand is not permissible merely because another

view can be taken on evidence.

21. In its recent judgment in the case of

Shivakumar and others v. Sharanabasappa and

others reported in 2020 SCC OnLine SC 385, the

Hon'ble Supreme Court has observed as follows:

"83 . A c on j oin t r e a din g o f Ru l e s 23 , 23A an d 24 o f O rd e r X LI b ri n g s f o rth th e sc o p e a s als o c on t ou r s o f th e po w e r s of r eman d t h at w h e n th e a va ilab l e e vid en c e is su ff ici e n t t o d isp o s e of th e m att e r, th e p r op e r c ou r s e f o r an A ppel lat e Co u r t i s t o f oll ow th e ma n dat e of Ru le 24 of O rd e r X LI CP C an d to d et e r min e th e su it fin all y. It is on ly in su ch ca s e s wh e r e th e de c r e e in ch al l en g e is r ev e r s ed in ap pe al an d a r e-t ri al is c on s id e r ed n e c e s sa ry th at th e A p p ell at e C ou rt sh al l ad o pt th e c ou r s e of r eman din g th e ca s e . I t r em ain s t rit e th at o rd e r o f r ema n d i s n ot t o b e pas s ed in a r o u tin e man n er b e cau s e an u n wa r ran te d o rd e r o f r em an d m e r el y el on g at e s th e l if e of th e lit ig ati on with ou t s e rv in g th e cau s e o f j u s ti ce . A n o rd e r of r em a n d on l y o n th e gr ou n d t h at th e po i nt s t o uc h in g the a pp r ec i at io n of ev id e nc e w er e no t d e al t w it h by t h e T ri a l Co u r t m ay no t b e c o ns i d er e d pr op e r in a g i ve n case b ec a u s e th e F i r st A pp e l l at e Co u rt it se l f is po s s es s e d of j ur i s di ct io n to ent e r i nto f ac ts a nd a pp r ec i at e t he ev i de nc e ..."

22. In view of the above law, an order of remand as

done by first appellate court herein would not be justified.

23. Under circumstances, I am of opinion that

impugned judgment and decree passed by first appellate

court cannot be sustained. It requires being set-aside with

direction to first appellate court to pass fresh judgment

and decree taking into account material available on

record.

24. And in order to ensure that remand does not

cause hardship to defendant, it would be appropriate to

issue directions to first appellate court to dispose of

appeal in an expeditious manner. Hence, I pass following: