Karnataka High Court
Nagarajegowda @ Nagaraju vs Sri. Ramakrishna on 18 December, 2023
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NC: 2023:KHC:46180
RSA No. 1591 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1591 OF 2023 (SP)
BETWEEN:
1. NAGARAJEGOWDA @ NAGARAJU
S/O VAJREGOWDA
AGED ABOUT 49 YEARS
2. SMT VIJAYA
W/O NAGARAJEGOWDA
AGED ABOUT 47 YEARS
3. SMT M N PRIYANKA
S/O NAGARAJEGOWDA
AGED ABOUT 26 YEARS
4. M.N.KANCHANA
Digitally AGED ABOUT 24 YEARS,
signed by
CHAITHRA A S/O NAGARAJEGOWDA
Location:
HIGH 5. M.N.NISARGA
COURT OF AGED ABOUT 22 YEARS,
KARNATAKA S/O NAGARAJEGOWDA
6. VARUN GOWDA.M.N
AGED ABOUT 21 YEARS,
S/O NAGARAJEGOWDA
ALL ARE RESIDING AT MALIKAVALU VILLAGE,
HONGERE POST, SHANTHIGRAMA HOBLI,
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RSA No. 1591 of 2023
HASSAN TALUK
HASSAN-573 220
...APPELLANTS
(BY SRI. PRAJWAL B H, ADVOCATE)
AND:
SRI. RAMAKRISHNA
S/O LATE MATEGOWDA
AGED ABOUT 69 YEARS
NEAR SANTHEPETE SCHOOL
HUNISEKERE EXTENSION
WARD NO 29, HASSAN-573201
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.06.2023
PASSED IN RA.NO.33/2020 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 18.08.2018 PASSED IN O.S.NO.131/2016
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, HASSAN.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful
defendants who have questioned the concurrent
judgments of the Courts below wherein plaintiff's suit
seeking relief of specific performance of contract is
decreed by both the Courts.
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2. For the sake of brevity, the parties are referred
to as per their rank before the trial Court.
3. The facts leading to the case are as under:
The plaintiff has filed suit for specific performance of
contract in O.S.No.131/2016. The plaintiff's case is that
defendants offered to sell the suit land and accordingly
executed an registered agreement to sell on 19.11.2014.
The plaintiff further pleaded that defendants were in
financial need to perform the marriage of defendant No.3
and therefore, for family necessity offered to sell 3 acres
out of 6 acres in Sy.No.33. After negotiation and due
deliberations, it was agreed that suit property would be
sold for Rs.5,05,000/-. Accordingly, on 19.11.2014,
defendants executed an registered agreement to sell by
receiving substantial sale consideration of Rs.5,00,000/-
out of total Rs.5,05,000/-. The present suit is filed
alleging that plaintiff is ever ready and willing to perform
his part of contract but defendants have deliberately not
come forward to complete the transaction by executing
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sale deed. The plaintiff has alleged that though legal
notice was issued through his counsel, defendants have
neither offered any reply nor have come forward to
complete the sale transaction. Hence, the present suit.
4. The defendants tendered appearance, filed
written statement and admitted that defendant No.1 has
received an amount of Rs.5,00,000/-. However,
defendants claimed that they had no intention to sell the
suit land and therefore, claimed that it is loan transaction.
The defendants further contended that defendant No.1 is
an illiterate person and plaintiff in collusion with the Sub-
Registrar has concocted the security document as an
agreement to sell. The defendants also contended that
market value of the suit property is Rs.75,00,000/- and
that suit property is an ancestral property. The
defendants further contended that defendant Nos.1 to 3
have no absolute right to sell the suit schedule property
adverse to the interest of the minor defendant Nos.4 to 6.
The defendants pleaded that they are willing to repay the
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loan borrowed by them and hence, sought for dismissal of
the suit.
5. The plaintiff to substantiate his claim let in oral
and documentary evidence. In absence of contest by the
defendants, trial Court exercising judicial discretion in
favour of plaintiff held that plaintiff has succeeded in
substantiating the due execution of sale agreement dated
19.11.2014. While answering issue No.2 in the negative,
for want of rebuttal evidence, trial Court held that
defendant No.1 has failed to substantiate that suit
agreement was offered only as a security and it is a loan
transaction.
6. Feeling aggrieved by the judgment and decree
of the trial Court, the defendants preferred appeal before
the appellate Court.
7. Though defendants contended that no
opportunity was afforded to them to contest the suit, the
said contention was not acceded to by the appellate Court.
At para 22, appellate Court pointed out all significant
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details reflecting conduct of defendants and the manner in
which the suit is contested and adjournments are sought
and held that it is not a fit case to grant any indulgence.
Having reassessed the entire evidence let in by the
plaintiff independently, appellate Court was of the view
that plaintiff is entitled for discretionary relief of specific
performance of contract. Consequently, appeal is
dismissed. These concurrent judgments are under
challenge.
8. Heard learned counsel appearing for the
defendants. Perused the concurrent findings recorded by
both the Courts below.
9. Learned counsel appearing for the defendants
has vehemently argued and contended that defendants
were denied fair opportunity and therefore, same has lead
to miscarriage of justice and defendants right in
immovable property is seriously prejudiced. This
argument canvassed by the learned counsel appearing for
the defendants is found to be totally contrary to the
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records. Therefore, I deem it fit to advert to the findings
recorded by the appellate Court at para 22 and 23. It
would be useful for this Court to cull out said paragraphs
which reads as under:
"22. But perusal of the trial Court records it
reveals that in the earlier occasion though
defendants appeared through their Counsel, they did
not file any written statement. The chief-
examination evidence of P.W.'s.1 and 2 was over,
the defendants have filed an application before the
Trial Court seeking permission to file their written
statement and the said application was allowed by
the trial Court on payment of costs. Subsequently,
both parties have submitted before the trial Court
that the matter may be referred to mediation centre.
Since, the matter was not settled before the
mediation centre issues were framed by the trial
Court and after framing of the issues matter was
posted for cross-examination of P.W.'s.1 and 2.
Since 25-01-2017 to 26-10-2017 the matter was
posted for cross-examination of P.W.'s.1 and 2. On
26-07-2017, the trial Court has passed an order to
the effect that cross-examination of P.W.'s.1 and 2
taken as nil since no representation made on behalf
of the defendants. Again on 21-11-2017, the
application has been filed by the defendants seeking
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recall of P.W.'s.1 and 2 and the said application came
to be allowed on payment of costs. Again the case
was posted for cross-examination of P.W.'s.1 and 2.
From 2-1-2018 to 6-2-2018 the matter was posted
for cross-examination of P.W.'s.1 and 2. On 6-2-
2018 the trial Court has ordered that the cross-
examination of P.W.'s.1 and 2 taken as nil and
posted the matter for defendant's evidence.
23. Subsequently, on next adjournment i.e., on
16-02-2018 the counsel for the defendant has filed
an application to recall of P.W.'s.1 and 2, and the
said application came to be allowed by the trial Court
on further cost of Rs.1,000/- and the matter was
adjourned to 22-03-2018, for cross-examination of
P.W.'s.1 and 2 and on that day the counsel for
defendants has submitted that the matter is likely to
be compromised, and as such, case was posted for
cross-examination of P.W.'s.1 and 2 and reported
about the compromise. Subsequently, on 9-7-2018
P.W.'s.1 and 2 were present before the trial Court
and since no representation made on behalf of the
defendant's side, again the matter was adjourned to
24-07-2018. On that day, both P.W.'s.1 and 2 were
present before the trial Court. Since no
representation made on behalf of defendants side,
cross-examination of P.W.'s.1 and 2 taken as nil by
the trial Court. The matter was posted for
defendant's evidence. Subsequently, on 2-8-2018,
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defendants did not appear before the trial Court, and
as such, the defendant's evidence taken as nil and
the matter was posted for arguments. Even when
the matter was posted for arguments, no
representation was made on behalf of the
defendant's side. The trial Court after hearing the
plaintiff's side has posted the matter for judgment.
On perusal of the order sheet of the trial Court it is
clear that the trial Court has given sufficient
opportunity to the defendants to cross-examine
P.W.'s.1 and 2. In spite of sufficient opportunity has
been afforded to the defendants they failed to cross-
examine the P.W.'s.1 and 2. Thus, the contentions
of the appellants that they were not given sufficient
opportunity to cross-examine P.W.'s.1 and 2 is not
acceptable."
10. Having glanced at these two paragraphs which
are culled out supra, I am more than satisfied that no
indulgence is warranted in the present case on hand. The
conduct of defendants in the present case on hand is
found to be grossly unfair and that conduct is consistently
found to be blemished. On plain reading of the above two
culled out paragraphs, it clearly depicts the conduct of
defendants and the manner in which they have contested
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the suit. Right from filing of written statement, the
defendants have used all possible means to protract the
hearing of the suit. The written statement is filed but that
too with permission of the Court after filing an application.
The defendants did not chose to cross-examine the
plaintiffs. On 26.07.2017, trial Court passed an order
taking cross-examination on behalf of defendants as Nil.
The defendants came out with application on 21.11.2017
requesting the Court to recall PWs.1 and 2. The said
application is allowed on payment of cost. Having availed
one opportunity, they again failed to cross-examine the
plaintiff. Again the cross-examination of PWs.1 and 2 is
taken as Nil and the matter is posted for defendants
evidence. The defendants again came with application to
recall PWs.1 and 2. This application is again allowed by
the trial Court by imposing cost of Rs.1,000/-. Having
succeeded, plaintiff's go on seeking adjournments on the
premise that the matter is likely to be settled. When
PWs.1 and 2 were kept present on 09.07.2018, counsel for
the defendants have not chosen to appear before the
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Court. The matter was ordered to be listed on
24.07.2018. Since there was no representation even on
the said date, trial Court having given a long rope to
defendants finally decides to take cross-examination on
behalf of the defendants as Nil and then the matter is
posted for defendants evidence. Finally, the defendants
evidence is taken as Nil and the matter is posted for
arguments and thereafter, trial Court having meticulously
assessed the evidence let in by the defendants has come
to conclusion that this is a fit case to grant discretionary
relief of specific performance of contract. The trial Court
having examined the equities and having found that equity
leans in favour of plaintiff has exercised judicial discretion
in favour of plaintiff and not in favour of defendants. The
appellate Court being final fact finding authority has
meticulously re-assessed the evidence on record
independently and has also not granted any indulgence.
11. The relief of specific performance is
discretionary and is governed by sound judicial principles.
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The grant of relief is at the discretion of the Court. The
Court, if all the ingredients are available, is bound to
exercise discretion and direct specific performance unless
it should be what is called highly unreasonable to do so.
In exercising discretion, the Court should take into account
the circumstances of the case, the conduct of parties and
their respective interest under the contract. It is also a
trite law that as an ordinary rule, specific performance
should be granted and has to be denied only when
equitable considerations show that damage would
constitute an adequate relief.
12. In the light of discussion made supra, this Court
is of the view that there is absolute laxness on the part of
the defendants. All possible stands are taken in the
written statement. If defendants intended to non-suit the
plaintiff, it was incumbent on them to lead rebuttal
evidence to demonstrate that the transaction is not a sale
transaction but the said document was offered towards
security for having secured hand loan. A sum of
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Rs.5,00,000/- is not a small amount in 2014 and
if defendant No.1 has acknowledged receipt of
Rs.5,00,000/-, in absence of rebuttal evidence, both the
Courts were justified in exercising discretion in favour of
plaintiff.
13. No substantial question of law arises for
consideration. Accordingly, appeal is dismissed.
The pending interlocutory application, if any, does
not survive for consideration and stands disposed of.
Sd/-
JUDGE
CA
