Karnataka High Court
Smt Yellamma vs Smt Jyothamma on 4 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:43641
RFA No. 137 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 137 OF 2022 (SP)
BETWEEN:
SMT YELLAMMA
W/O PARASHURAMAIAH
AGED 73 YEARS,
R/AT NO.74, 12TH CROSS,
15TH MAIN ROAD, NEAR VIT COLLEGE,
ARALKATTE, J.P.NAGAR, 2ND STAGE,
BENGALURU-78.
...APPELLANT
(BY SRI. RAMESH ADITHYA, ADVOCATE)
AND:
SMT JYOTHAMMA
W/O LATE C.VENKATASWAMY
AGED 77 YEARS,
CORPORATION QUARTERS,
BARLIE STREET,
BANGALORE.
Digitally
signed by ...RESPONDENT
VANDANA S (BY SRI. ARUN K S.,ADVOCATE)
Location:
HIGH
COURT OF THIS RFA IS FILED UNDER SECTION 96 OF THE CPC,
KARNATAKA
AGAINST THE JUDGMENT AND DECREE DATED: 10.12.2020
PASSED IN OS.NO.1724/2013 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, BANGALORE (RURAL) DISTRICT,
BANGALORE, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE.
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:43641
RFA No. 137 of 2022
JUDGMENT
This appeal by the defendant in O.S.No.1724/2013 is
directed against the impugned judgment and decree dated
10.12.2020 passed by the Principal Senior Civil Judge, Bangalore
Rural District, Bangalore whereby the said suit filed by the
respondent - plaintiff against the appellant - defendant for specific
performance of an alleged Agreement of sale dated 06.02.2008 in
relation to the suit schedule immovable property was decreed by
the Trial Court in favour of the respondent against appellant -
defendant.
2. Heard learned counsel for the appellant and learned
counsel for the respondent and perused the material on record.
3. The material on record discloses that the respondent -
plaintiff instituted the aforesaid suit for specific performance of the
aforesaid Sale Agreement and other reliefs.
4. In the said suit, appellant - defendant entered
appearance and filed her written statement pursuant to which the
Trial Court framed the following issues:
NC: 2023:KHC:43641
"1. Whether the plaintiff proves the agreement of sale
dated 06.02.2008 and payment of advance sale
consideration of Rs.9,50,000/- to the defendant?
2. Whether the plaintiff further proves that she was always
ready and willing to perform her part of contract?
3. Whether the plaintiff is entitled for suit reliefs?
4. To what decree or order?"
5. On behalf of the plaintiff, three witnesses PW-1 to 3 were
marked and documentary evidence at Ex.P1 to P13 were marked.
6. However, the appellant - defendant neither cross-
examined PW-1 nor adduced any defence evidence and Trial Court
proceeded to pass the impugned judgment and decree in favour of
the respondent - plaintiff against the appellant - defendant whose
before this Court by way of the present appeal.
7. In addition to re-iterating the various contentions urged in
the appeal and referring to the material on record, learned counsel
for the appellant submits that on account of the prevailing Covid-19
pandemic, it was not possible for the appellant who is the senior
citizen to contact her counsel and give him necessary instructions
to cross-examine PW-1 to 3 and also to adduce oral and
documentary evidence in support of her defence.
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8. It is submitted that the inability and omission on the part of
the appellant to cross-examine PW-1 to 3 and also to adduce
defence evidence was due to bonafide reasons, un-avoidable
circumstances and sufficient cause and as such, it is necessary to
provide one more opportunity in favour of the appellant to cross-
examine PW-1 to 3 and adduce defence evidence and contest the
suit on merits, failing which the appellant would be put to
irreparable injury and hardship and justice to suffer.
9. Per contra, the learned counsel for the respondent -
plaintiff would support impugned judgment and decree and submit
that there is no merit in the appeal and the same is liable to be
dismissed.
10. I have given my anxious consideration and perused the
material on record.
11. A perusal of material on record will indicate that the Trial
Court proceeded to decree the suit in favour of respondent -
plaintiff on the sole ground that oral and documentary evidence
adduced by the respondent - plaintiff had not been challenged,
impeached or controverted by way of cross-examination by the
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appellant who also did not adduce any oral or documentary
evidence.
12. However, in the light of the specific contention of the
appellant that it was not possible for her to cross-examine PW-1 to
3 and also adduce oral and documentary evidence on account of
the prevailing Covid-19 pandemic, adopting a Justice oriented
approach and in order to provide one more opportunity to appellant
to cross-examine PW-1 to 3 and also adduce defence evidence,
without expressing any opinion on merits / demerits of the rival
contentions, I deem it just and appropriate to set aside the
impugned judgment and decree and remit the matter back to the
Trial Court for reconsideration afresh within a stipulated time frame
by imposing cost upon the appellant.
13. In the result, I pass the following orders:
i) Appeal is hereby allowed.
ii) Impugned judgment and decree is hereby set aside.
iii) The matter is remitted back to the Trial Court for
reconsideration afresh in accordance with law.
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iv) Liberty is reserved in favour of appellant to cross-
examine PW-1 to 3 as well as any other witnesses to be examined
on behalf of the respondent - plaintiff.
v) Liberty is also reserved in favour of appellant to adduce
oral or documentary evidence in support of her defence.
vi) All rival contentions on all aspects of the matter are
kept open to be decided by the Trial Court and no opinion is
expressed on the same.
vii) In view of the joint submission made by the learned
counsel for the appellant and learned counsel for the respondent,
the registry of this Court is directed to disburse / release a sum of
Rs.50,000 out of the total Court fee of Rs.64,650/- paid on the
memorandum of appeal in favour of the appellant and also release
/ disburse the remaining sum of Rs.14,650 paid towards Court fee
on the memorandum of appeal in favour of the respondent towards
the cost of the present order.
viii) Both parties undertake to appear before the Trial
Court on 21.12.2023 without awaiting any further notice.
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ix) Trial Court is directed to dispose of the suit within a
period of nine months from the date of receipt of a copy of this
order.
Sd/-
JUDGE
DHA
