Karnataka High Court
Sajeeda Begum vs Smt Saraswathamma on 15 December, 2023
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RSA No. 1917 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1917 OF 2012 (SP)
BETWEEN:
1. SAJEEDA BEGUM
W/O ABDUL WAHAB,
AGED ABOUT 61 YEARS,
2. MAHAMAD JAMEEL
S/O ABDUL WAHAB,
AGED ABOUT 39 YEARS,
BOTH ARE R/O AKKIRAMPURA,
HOLAVANAHALLI HOBLI,
KORTEGERE TALUK.
...APPELLANTS
(BY SRI. K. N. NITHISH, ADVOCATE)
AND:
Digitally signed 1. SMT. SARASWATHAMMA
by R DEEPA SINCE DEAD BY LRS:
Location: High
Court of (a) RAVIKUMAR
Karnataka S/O GURUSIDDAIAH,
AGED ABOUT 30 YEARS,
1175, 7th MAIN, TRIVENI ROAD,
2nd CROSS, KAMALA NEHRU EXTENSION,
YESHWANTHAPURA, BANGALORE - 560 022.
(b) HEMANTH
S/O GURUSIDDAIAH,
AGED ABOUT 24 YEARS,
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RSA No. 1917 of 2012
1175, 7th MAIN, TRIVENI ROAD,
2nd CROSS, KAMALA NEHRU EXTENSION,
YESHWANTHAPURA, BANGALORE - 560 022.
(c) SIDDESH
S/O GURUSIDDAIAH,
AGED ABOUT 27 YEARS,
1175, 7th MAIN, TRIVENI ROAD,
2nd CROSS, KAMALA NEHRU EXTENSION,
YESHWANTHAPURA, BANGALORE - 560 022.
...RESPONDENTS
(BY SRI. A.V.GANGADHARAPPA, ADVOCATE FOR R1(A-C)
(AVG ASSOCIATES), VIDE ORDER DATED 7/1/2015,
NOTICE IS HELD SUFFICIENT IN R/O R1(B) & R1(C) )
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 20.6.2012 PASSED IN
R.A.NO.65/2010 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-V, MADHUGIRI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
22.12.2009 PASSED IN OS.NO.96/2006 ON THE FILE OF
ADDITIONAL CITY CIVIL (SR.DN.) & JMFC,MADHUGIRI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed challenging the judgment
dated 20.06.2012 passed in R.A.No.65/2010 by the Fast
Track Court-V, Madhugiri.
2. For the sake of convenience, parties are
referred to as per their ranking before the Trial Court. The
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appellants are the plaintiffs and respondents are the LRs of
the deceased-defendant.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiffs filed a suit for specific performance of
contract against the defendant seeking a direction to the
defendant to execute a registered sale deed as per the
terms and conditions of agreements of sale dated
15.07.2006. It is the case of the plaintiffs that the
defendant is the absolute owner of the suit schedule
properties. The defendant agreed to sell the suit schedule
properties for consideration of Rs.1,66,000/- and
Rs.1,06,000/- and defendant executed two separate
agreements of sale in favour of the plaintiffs on
15.07.2006 and accordingly, the plaintiffs paid a sum of
Rs.1,00,000/- as an advance amount. On 19.10.2006, the
defendant demanded for enhancement of consideration
amount and consideration amount was enhanced by
another Rs.35,000/- and it was fixed at Rs.3,10,000/- for
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both the lands and the defendant received another sum of
Rs.75,000/-. Thereafter, the plaintiffs approached the
defendant and requested to execute a registered sale
deed, but the defendant did not executed the registered
sale deed. The plaintiffs got issued a legal notice on
23.11.2006 calling upon the defendant to receive the
balance consideration amount and to execute a registered
sale deed. The said notice was served on the defendant,
the defendant replied to the legal notice. The defendant
denied to execute a registered sale deed and attempted to
alienate the suit properties to the strangers for higher rate
to get wrongful gain. Hence, cause of action arose for the
plaintiffs to file suit for specific performance of contract.
4. The defendant filed a written statement denying
the execution of the agreements of sale and contended
that the said transaction is the loan transaction and denied
the averments made in the plaint. It is contended that the
suit schedule properties are the ancestral properties of the
defendant and her children and it is contended that the
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plaintiffs have obtained her signature by playing a fraud
and created the agreements of sale. Hence, prayed to
dismiss the suit.
5. The Trial Court on the basis of the pleadings of
the parties, framed the following issues:
"1. Whether the plaintiffs prove that the defendant
agreed to sell the item No.1 of the schedule
property for Rs.1,66,000/- on 15-7-2006 and
received the advance amount of Rs.50.000/-
agreeing to execute the registered sale deed
after receiving the balance amount of
Rs.1,16,000/-?
2. Whether the plaintiffs prove that they were
ready and willing to perform their part of the
contract?
3. Whether the defendant proves that the schedule
properties are the ancestral joint family
properties of her deceased husband and she
along with her sons in joint possession and
enjoyment of the same as absolute owner?
4. Whether the defendant proves that the suit is
barred under Sec.20 of the Specific Relief Act?
5. Whether the plaintiffs are entitle for reliefs
sought in the suit?
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6. What order or decree?"
6. The plaintiffs examined themselves as P.W.1
and P.W.2 and examined 3 witnesses as P.W.3 to P.W.5
and got marked 5 documents as Exs.P.1 to P.5. The
defendant examined herself as D.W.1 and no documents
are marked on behalf of the defendant.
7. The Trial Court on the assessment of oral and
documentary evidence, answered issue Nos.1, 2, 5 in the
affirmative, issue Nos.3 and 4 in the negative and issue
No.6 as per the final order. Consequently, the Trial Court
decreed the suit of the plaintiffs with cost and it is ordered
and directed the defendant to execute a registered sale
deed in favour of plaintiffs, totally receiving the balance
consideration of Rs.1,35,000/- from the plaintiffs within a
period of 3 months and further it is also ordered that in
case the defendant fails to execute a registered sale deed
as directed above after the expiry of 3 months, the
plaintiffs are at liberty to apply for appointment of Court
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Commissioner for the purpose of execution of the sale
deeds in their favour.
8. The defendant aggrieved by the judgment and
decree passed by the Trial Court preferred an appeal in
R.A.No.65/2010 on the file of Fast Track Court-V,
Madhugiri.
9. The First Appellate Court after hearing the
parties, framed the following points for consideration:
"1. Whether the appellant/defendant has
made out bonafied grounds to interfere in
the judgment of the lower court that the
lower court has not properly appreciated
the documentary and oral evidence and
the suit is liable to be dismissed?
2. What order?"
10. The First Appellate Court on reassessment of
oral and documentary evidence answered point No.1 in the
affirmative and point No.2 as per the final order.
Consequently, the First Appellate Court allowed the appeal
and dismissed the suit for specific performance of contract
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and decreed the suit for an alternative prayer i.e., the
defendant is directed to repay the amount of
Rs.1,75,000/- to the plaintiff No.1 with a simple interest at
the rate of 6% per annum from the date of the suit within
three months from the date of the said order. The
plaintiffs aggrieved by the judgment and decree passed by
the First Appellate Court has filed this second appeal.
11. This Court admitted the appeal on the following
substantial question of law:
"Whether the plaintiff proves that the
judgment and decree passed by the First
Appellate Court is not in accordance with
Order XLI Rule 31 of CPC."
12. Heard the learned counsel for the plaintiffs and
also learned counsel for the defendant.
13. Learned counsel for the plaintiffs submits that
except extracting the deposition of witnesses and referring
to the exhibits, the First Appellate Court has not assigned
any reasons. He submits that the impugned judgment
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passed by the First Appellate Court is in violation of Order
XLI Rule 31 of the CPC and he submits that the First
Appellate Court except framing point No.1 has not
answered the issues framed by the Trial Court. He submits
that the appeal under Section 96 of the CPC is the last fact
finding of the Court. The First Appellate Court is required
to re-appreciate the entire evidence on record and also
required to frame points for consideration and answer all
the issues framed by the Trial Court. He submits that the
First Appellate Court has not applied its mind while passing
the impugned judgment. Hence, on this ground, he prays
to allow the appeal and remit the matter to the First
Appellate Court to reconsider the appeal afresh.
14. Per contra, learned counsel for the defendant
supports the impugned judgment and he submits that the
First Appellate Court after re-appreciating the material on
record was justified in passing the impugned judgment.
Hence, on this ground, he prays to dismiss the appeal.
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15. Perused the records and considered the
submission of the learned counsel for the parties.
16. Substantial question of law: The plaintiff
has filed a suit for specific performance of contract against
the defendant contending that the defendant is the
absolute owner of the suit schedule properties and the
defendant agreed to sell the suit schedule properties in
favour of the plaintiffs for total consideration of
Rs.3,10,000/- and accordingly, the plaintiffs have paid a
sum of Rs.1,75,000/- towards part consideration amount
and the remaining consideration amount was agreed to be
paid within three months from the date of agreements of
sale. The plaintiffs were ready and willing to perform their
part of contract. The plaintiffs requested the defendant to
execute the registered sale deed but the defendant did not
execute the registered sale deed. The plaintiffs got issued
a legal notice calling upon the defendant to receive the
balance consideration amount to execute registered sale
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deeds. The defendant replied to the legal notice denying
the execution of the agreements of sale.
17 . The plaintiffs in order to prove their case,
examined themselves as P.W.1 and P.W.2 and examined
three witnesses as P.W.3 to P.W.5 and produced 5
documents as Ex.P.1 to P.5. Ex.P.1 and Ex.P.5 are the
agreements of sale executed by the defendant in favour of
plaintiffs; Ex.P.2 is the RTC extract; Ex.P.3 is the legal
notice got issued by the plaintiffs to the defendant calling
upon the defendant to receive the balance consideration
amount and to execute the registered sale deeds; Ex.P.4
is the postal receipts. In rebuttal, the defendant examined
herself as D.W.1 but no documents were marked.
18. From the perusal of the judgment passed by the
First Appellate Court, the First Appellate Court has not
assigned any reasons. Without assigning the reasons, the
First Appellate Court dismissed the suit of the plaintiffs.
The first appeal under Section 96 of CPC is a continuation
of the suit and it is incumbent upon the First Appellate
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Court to reassess the entire evidence on record and has to
follow the guidelines provided under Order XLI Rule 31 of
the CPC while deciding the appeal. The right of appeal,
under Section 96 of CPC carries with it a right of re-
hearing on law as well as on fact, unless the statute
conferring a right of appeal, limits the re-hearing in some
way as had been done in second appeal arising under
Section 100 of the CPC. The First appeal is a valuable right
of the appellant and therein all questions of fact and law
decided by the trial Court are open for re-consideration.
The First Appellate Court is required to address itself to all
the issues and decide the case by giving reasons. The
Court of first appeal must record its findings only after
dealing with all issues of law as well as fact and with the
evidence oral as well as documentary, led by the parties.
The judgment of the First Appellate Court must display
conscious application of mind and record findings
supported by reasons on all issues and contention.
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19. A First appeal under Section 96 of the CPC is
entirely different from a second appeal under Section 100
of the CPC. Section 100 of the CPC expressly bars the
second appeal unless a question of law is involved in a
case and the said question of law so involved is substantial
in nature.
20. Order XLI Rule 31 of the CPC, reads as under:
"Contents, date and signature of
judgment.-The judgment of the Appellate
Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled,
and shall at the time that it is pronounced
be signed and dated by the Judge or by the
Judges concurring therein."
21. It is clear from the above provisions that the
judgment of the First Appellate Court has to set out points
for determination, record the decision thereon and give its
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own reasons. Non observance of this requirement leads to
infirmity in the judgment of the First Appellate Court.
Keeping in mind the above principles, I have examined the
judgment passed by the First Appellate Court. The
judgment and decree passed by the First Appellate Court
is in violation of Order XLI Rule 31 of the C.P.C. The First
Appellate Court being a final fact finding Court is required
to re-appreciate the material on record and answer all the
issues framed by the trial Court.
22. From the perusal of the judgment passed by the
First Appellate Court, the First Appellate Court has not
framed the points for determination properly and further
the First Appellate Court has not assigned any reasons for
reversing the judgment passed by the Trial Court. Further,
the appeal under Section 96 of the CPC is that the First
Appellate Court is required to re-appreciate the entire
evidence and answer all the issues framed by the Trial
Court and assign reasons. Further, the impugned
judgment is not in accordance with Order XLI Rule 31 of
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CPC. Hence, on this ground, the impugned judgment is
liable to be set aside. Hence, in view of the above
discussion, I answer substantial question of law in the
affirmative.
23. Accordingly, I proceed to pass the following:
ORDER
The appeal is allowed.
The judgment and decree passed the First Appellate
Court in R.A.No.65/2010 dated 20.06.2012 is set aside.
The matter is remitted to the First Appellate Court.
The First Appellate Court is directed to consider the appeal
afresh and pass appropriate judgment in accordance with
Order XLI Rule 31 of CPC.
All the contentions of the parties are kept open.
This Court has not made any adjudication on the
merits in issue.
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Parties are directed to appear before the First
Appellate Court on 11.01.2024.
Office is directed to transmit the records to the First
Appellate Court forthwith.
Office is directed to refund the court fee as per
provision under Section 64 of the Karnataka Court fees
and Suits Valuation Act, 1958 paid on the memorandum of
appeal..
In view of disposal of the main appeal, pending
I.A.No.2/2013 does not survive for consideration and the
same is disposed of.
Sd/-
JUDGE
GBB
CT:SK
