Sri. Lokesh vs Mr. G.H. Chetan
2023 Latest Caselaw 431 Kant

                         1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU


       DATED THIS THE 6TH DAY OF JANUARY, 2023

                       BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


      REGULAR SECOND APPEAL NO.1709 OF 2014 (SP)


BETWEEN:

SRI.LOKESH
S/O LATE LINGAIAH
@ CHOTAPPA
AGED ABOUT 45 YEARS
RESIDING AT
GANDALU VILLAGE
DUDDA HOBLI
MANDYA TALUK
MANDYA - 571 405

                                       ... APPELLANT


(BY SRI.ROOPESHA B, ADVOCATE)


AND

MR.G.H.CHETAN
S/O G.M.HONNABASAVEGOWDA
AGED ABOUT 32 YEARS
RESIDING AT
GANDALU VILLAGE
DUDDA HOBLI
MANDYA TALUK
                              2



MANDYA - 571 405

                                            .....RESPONDENT

(BY SRI.ABHISHEK ARUN KUMAR HAPPALI, ADVOCATE
FOR SMT.VAISHALI HEGDE, ADVOCATE)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 READ WITH ORDER XLII RULE 42 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 27.08.2014
PASSED IN R.A.NO.4/2014 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
AND     DECREE   DATED    22.12.2007   PASSED    IN
O.S.NO.181/2003 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR. DN) AND CJM, MANDYA.

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                        JUDGMENT

The captioned second appeal is filed by the

unsuccessful defendant, who has suffered concurrent

findings of the Courts below, wherein the plaintiff's suit for

specific performance is decreed by the Trial Court and

confirmed by the Appellate Court.

2. For the sake of brevity, the parties are referred as

they are ranked before the Trial Court.

3. The plaintiff has instituted a suit seeking relief of

specific performance of contract in O.S.No.181/2003 to

enforce the registered sale agreement dated 29.06.2001.

The plaintiff contended that defendant offered to sell the suit

land to the plaintiff for valuable sale consideration of

Rs.1,40,000/- and accordingly, executed a registered sale

agreement on 29.06.2001 and he has received an advance

sale consideration of Rs.1,20,000/-. The plaintiff claimed

that he is ever ready and willing to perform his part of

contract. It is also alleged that since the defendant is guilty

in not performing his part of contract, the present suit is

filed.

4. The defendant tendered appearance and filed

written statement and stoutly denied the entire averments

made in the plaint. Though defendant admitted the

execution of the suit agreement, but, however, claimed that

he had no intention to sell the suit land as it is a joint family

ancestral property and there are other co-owners. The

defendant claimed that he has availed hand loan of

Rs.50,000/- in the month of June 2001. Therefore, the

present suit agreement is executed only by way of security.

The defendant further contended that he has not received

any advance sale consideration as alleged in the plaint.

A specific defence was raised that plaintiff has paid a sum of

Rs.40,000/- towards hand loan, therefore, sought for

dismissal of the suit.

5. Though the defendant contested the suit by filing

written statement, however, did not choose to lead any

rebuttal evidence. The plaintiff to substantiate his claim

tendered evidence by examining himself as P.W.1 and also

examined one witness to the suit agreement as P.W.2. The

plaintiff has produced the copy of the sale agreement, which

was marked as Ex.P.1 and legal notice as Ex.P.2.

6. Trial Court having examined the evidence on

record answered issue Nos.1 to 3 in the affirmative. Trial

Court held that plaintiff has succeeded in proving that the

defendant has executed an agreement on 29.06.2001 by

receiving advance sale consideration of Rs.1,20,000/-.

While answering issue No.3 in the affirmative, the Trial

Court held that the plaintiff has succeeded in proving his

readiness and willingness. In absence of contest and

referring to the evidence on record, the Trial Court was of

the view that the plaintiff is entitled for discretionary relief

of specific performance of contract. Accordingly, the suit is

decreed by judgment and decree dated 22.12.2007.

7. The defendant preferred an appeal before the

Appellate Court in the year 2014. An application was filed

under Section 5 of the Limitation Act and the defendant was

examined as P.W.1 before the Appellate Court. The

Appellate Court having examined the explanation offered by

the defendant in not approaching the Court was not inclined

to accept the explanation offered by the defendant. At para

No.11, the Appellate Court has culled out the admissions

elicited in the cross-examination of the defendant. The

Appellate Court referring to the relevant

cross-examination, found that the defendant was grossly

negligent in not contesting the suit. The Appellate Court

also found that the defendant has expressed his ignorance

of passing of a decree in favour of the plaintiff. He has also

admitted that he has never enquired with the stage of the

suit. Referring to these relevant admissions elicited in the

cross-examination, the Appellate Court was of the view that

the defendant was found to be grossly negligent and

therefore, the belated appeal is liable to be dismissed on the

ground of limitation. There is a categorical finding recorded

by the Appellate Court that the defendant has not come with

clean hands and he has suppressed the facts and only with

an oblique motive to drag on the matter, the defendant has

filed the appeal. Consequently, application is rejected and

the appeal is also dismissed as barred by limitation.

Therefore, the defendant is in second appeal.

8. Learned counsel reiterating the grounds urged in

the second appeal would vehemently argue and contend

that the plaintiff is into money lending business and

therefore, he would contend that if the decree for specific

performance is not interfered with, it would cause immense

loss to the defendant as the suit property is only the

property held by the family members. He would further

contend that the Appellate Court erred in not taking the

lenient view while considering the application filed under

Section 5 of the Limitation Act. Placing reliance on the

judgment rendered by the Hon'ble Apex Court in the case of

COAL INDIA LIMITED AND ANOTHER VS. UJJAL

TRANSPORT AGENCY AND OTHERS IN CIVIL APPEAL

NO.8703/2010 (ARISING OUT OF SLP(C)

NO.17401/2010), he would contend that the defendant

was bonafidely in prosecuting the petition filed under Order

9 Rule 13 of CPC and therefore, failed to prefer an appeal

under Section 96 of CPC in time. Therefore, he would

contend that if the period spent before wrong forum is

excluded, the appeal preferred before the Appellate Court

was well within reasonable time and therefore, he would

contend that the Appellate Court ought to have taken

lenient view while considering the application filed under

Section 5 of the Limitation Act. He has also placed reliance

on the judgment rendered by the Hon'ble Apex Court in the

case of MORESHAR YADAORAO MAHAJAN V.

VYANKATESH SITARAM BHEDI (D) THR. LRS. AND

OTHERS1. Placing reliance on the ratio laid by the Hon'ble

Apex Court in the judgments cited supra, he would contend

that admittedly, the suit property being a joint family

ancestral property, the suit for specific performance only

against the defendant was not at all maintainable. On these

set of grounds, he would contend that captioned second

appeal involves substantial questions of law and therefore,

he would request this Court to admit the appeal.

9. Per contra, the learned counsel appearing for the

plaintiff would contend that the defendant was grossly

negligent and he has not chosen to contest the proceedings.

He would bring to the notice of this Court that the plaintiff

based on the decree passed in O.S.No.181/2003 filed

execution petition and sale deed is executed through the

Court Commissioner on 19.05.2018. Therefore, he would

AIR 2022 SUPREME COURT 4710

contend that in absence of contest, the judgment rendered

by the Courts below does not suffer from any infirmities. In

support of his submission, he has placed reliance on the

decision of the Hon'ble Apex Court in the case of

MAJJI SANNEMMA ALIAS SANYASIRAO VS. REDDY

SRIDEVI AND OTHERS2.

10. Heard learned counsel appearing for the defendant

and learned counsel appearing for the plaintiff. Perused the

judgments rendered by the Courts below. I have also given

my anxious consideration to the principles laid down by the

Hon'ble Apex Court. I have also examined the citations

relied on by the learned counsel appearing for the defendant

and learned counsel appearing for the plaintiff.

11. The suit agreement is dated 29.06.2001. The

plaintiff has filed a suit for specific performance of contract

on 18.07.2003. Before instituting a suit, the plaintiff has

issued a legal notice. The defendant has not chosen to give

reply to the legal notice. A feeble attempt is made by the

2021 SCC ON LINE SC 1260

defendant by filing a written statement wherein a defence is

set up indicating that the suit property is a joint family

ancestral property and there are other co-owners and in the

alternate, the defendant has also contended that the

agreement was executed as a security to the loan

transaction. Having raised the defence, the defendant has

not chosen to contest the proceedings. There is absolutely

no rebuttal evidence. Though the defendant has cross-

examined the plaintiff, nothing worth is elicited in the cross-

examination.

12. The tenor of the defence set up by the defendant

clearly indicates that defendant having come forward to sell

the suit land in favour of the plaintiff in a suit for specific

performance has tried to wriggle out of genuine transaction

by raising a plea that suit land is an ancestral property. The

second defence is that suit agreement is executed towards

security to the loan transaction. Though the learned counsel

vehemently argued and contended that plaintiff is into

money lending business, such a contention is not found in

the written statement. If the claim of the defendant that suit

agreement was executed as a security to the loan

transaction and if the same is not substantiated by leading

rebuttal evidence, the Trial Court having examined the

terms and conditions in the agreement coupled with the

evidence of the witnesses to the agreement, has rightly

come to the conclusion that the plaintiff is entitled for

discretionary relief of specific performance.

13. The contention of the defendant that the appeal

was filed in time is also found to be misconceived. It is a

trite law that the defendant having suffered an exparte

decree is entitled to pursue simultaneously both the

remedies available to him under Section 96(2) of CPC and

under Order 9 Rule 13 of CPC., Therefore, the principles

laid down by the Hon'ble Apex Court in the case of COAL

INDIA LIMITED AND ANOTHER VS. UJJAL TRANSPORT

AGENCY AND OTHERS IN CIVIL APPEAL

NO.8703/2010 (ARISING OUT OF

SLP(C) NO.17401/2010) has no application to the

present case on hand.

14. The claim of the defendant that he was pursuing

wrong remedy is untenable in law. In fact, he has privilege

of two remedies. When there is an exparte decree, the

defendant can simultaneously pursue both remedies. The

Trial Court decreed the suit by the judgment and decree

dated 22.12.2007, while the regular appeal is filed in the

year 2014. Even in the year 2014, the defendant in his

evidence admits that he is not at all aware in regard to

passing of a decree. He has admitted that he has not

enquired into as to what happened to the suit. Therefore,

the principles laid down by the Hon'ble Apex Court in the

case of MAJJI SANNEMMA ALIAS SANYASIRAO VS.

REDDY SRIDEVI AND OTHERS are squarely applicable to

the present case on hand. In the present case on hand, the

defendant is found to be gross negligent. There is a total

laxness on the part of the defendant in not deliberately

contesting the suit. Even in the year 2014, it is elicited that

the defendant is not aware as to what happened to the suit.

It is not a fit case where the Appellate Court would have

shown any indulgence. Therefore, the principles laid down

by the Hon'ble Apex Court in the above cited judgments are

squarely applicable to the case on hand. This is a strange

case, where the defendant has opted to take a chance by

filing an appeal in the year 2014 questioning the decree

passed in the year 2007. As rightly pointed out by the

learned counsel appearing for the plaintiff, if plaintiff has

obtained the sale deed by filing the execution petition, which

is dated 19.05.2018, no interference is warranted. It is in

this background, this Court would not find any infirmities or

irregularities in the judgment rendered by the Appellate

Court. The judicial discretion exercised by the Trial Court in

favour of the plaintiff is found to be reasonable and I do not

find any irregularities adopted by the Trial Court while

exercising the judicial discretion in granting relief of specific

performance in favour of the plaintiff.

No substantial question of law arises of consideration

in this appeal.

Accordingly, the appeal is dismissed.

In view of the dismissal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and accordingly, they are dismissed.

Sd/-

JUDGE

NBM