Karnataka High Court
Vishwanath S/O Avadhbihari ... vs Davalatsingh S/O Gajanansingh ... on 9 January, 2023
Bench: M.G.S. Kamal
-1-
RSA No. 5994 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5994 OF 2011 (SP-)
BETWEEN:
VISHWANATH S/O AVADHBIHARI MISHRA
SINCE DECEASED BY HIS LEGAL HEIRS
1. SRI.SATYANARAYAN S/O VISHWANATH MISHRA,
AGE:MAJOR, OCC:BUSINESS,
R/O:TIKARE ROAD, DHARWAD-580001.
2. SRI.SHIVANARAYAN S/O VISHWANATH MISHRA
AGE:MAJOR, OCC:BUSINESS,
R/O:TIKARE ROAD, DHARWAD-580001.
3. SRI.RAGHAVENDRA S/O VISHWANATH MISHRA
AGE:MAJOR, OCC:BUSINESS,
R/O:TIKARE ROAD, DHARWAD-580001.
4. SMT.USHA W/O RAJAN TRIVEDI
Digitally signed
by ROHAN
ROHAN
HADIMANI T
Location: HIGH
HADIMANI COURT OF
AGE:MAJOR, OCC:HOUSEWIFE,
KARNATAKA
T DHARWAD
Date: 2023.01.13
11:50:15 +0530 R/O:C/O:S.V.MISHRA, TIKARE ROAD,
DHARWAD-580001.
5. SMT.MEERA W/O PARAS TIWARI
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TIKARE ROAD,
-2-
RSA No. 5994 of 2011
DHARWAD-580001.
6. SMT.ASHA W/O KAMALESH SHUKLA
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TIKARE ROAD,
DHARWAD-580001.
7. SMT.SACHI W/O RAJ SHARMA
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TKARE ROAD,
DHARWAD-580001.
8. SMT.CHANDRAKALA W/O VISHWANATH MISHRA
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:C/O:S.V.MISHRA, TIKARE ROAD,
DHARWAD-580001.
...APPELLANTS
(BY SRI.GIRISH A YADWAD, ADV. FOR SRI.V.P.KULKARNI,
ADV.)
AND:
DAVALATSINGH S/O GAJANANSINGH THAKUR
SINCE DECEASED BY HIS LEGAL HEIRS
1. HEERABAI W/O DAVALATSINGH THAKUR,
AGE:MAJOR, OCC:HOUSEWIFE,
R/O:KAKARGALLI, LINE BAZAR,
DHARWAD-580001.
2. GURUDAYALSINGH @ NITIN S/O DAVALATSINGH
THAKUR
AGE:MAJOR, OCC:BUSINESS, R/O:KAKARGALLI,
-3-
RSA No. 5994 of 2011
LINE BAZAR, DHARWAD-580001.
3. SRI.NAVEENSINGH S/O DAVALATSINGH THAKUR
AGE:MAJOR, OCC:BUSINESS, R/O:KAKARGALLI,
LINE BAZAR, DHARWAD-580001.
4. SMT.SAPNA W/O RAGHAVENDRASINGH
AGE:MAJOR, OCC:HOUSEWIFE, R/O:KAKARGALLI,
LINE BAZAR, DHARWAD-580001.
5. SRI ADITYA A/F, SATYA PRASAD MISHRA
OCC:BUSINESS, R/O:LINE BAZAR,
DHARWAD-580001.
...RESPONDENTS
(BY SRI.S.B.MALLIGWAD, ADV. FOR R1 TO R4; NOTICE TO R5
SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 14.07.2011
PASSED IN R.A.NO.36/1995 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III AT DHARWAD, ALLOWING
THE APPEAL FILED AGAINST THE JUDGMENT DATED
07.04.1995 AND THE DECREE PASSED IN O.S.NO.88/1990 ON
THE FILE OF THE I ADDL.CIVIL JUDGE, DHARWAD, DECREEING
THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
-4-
RSA No. 5994 of 2011
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Present appeal is filed by the plaintiff, aggrieved
by the judgment and order dated 14.07.2011 passed in
R.A.No.36/1995 on the file of the Fast Track Court-III,
Dharwad (hereinafter referred to as 'the First Appellate
Court'), in and by which while allowing the appeal, the
First Appellate Court set aside the judgment and decree
dated 07.04.1995 passed in O.S.No.88/1990 on the file of
the I Additional Civil Judge, Dharwad (hereinafter referred
to as 'the Trial Court') and further held that the legal
representatives of the plaintiff are entitled for refund of an
amount of Rs.25,000/- with interest at the rate of 18%
per annum from the date of agreement till the date of
payment, subject to establishing their right for refund.
2. The aforesaid suit in O.S.No.88/1990 was filed
by Sri.Vishwanath, father of the appellants herein as
plaintiff No.1 along with one Sri.Satyaprakash
Nandakumar Mishra as plaintiff No.2, who is respondent
RSA No. 5994 of 2011
No.5 in the present appeal. In the said suit in
O.S.No.88/1990, the said plaintiffs contended that the
defendant being the owner, in possession of the suit
property bearing Sy.No.23 measuring 19 acres 1 gunta
and Sy.No.24 measuring 19 acres 26 guntas, totally
measuring 38 acres 27 guntas at Halligeri village in
Dharwad had agreed to sell the same to the plaintiffs on
23.09.1985 for a sale consideration of Rs.75,000/- and
had executed an agreement of sale in this regard. That the
plaintiffs had made part-payment of agreed sale
consideration in a sum of Rs.25,000/- to the defendants
and it was agreed that balance amount of Rs.50,000/-
would be paid by the plaintiffs to the defendant at the time
of execution of deed of sale before the concerned Sub-
Registrar. That the defendant had agreed to execute such
deed of sale in favour of the plaintiffs after having the
dispute with the Forest Department settled/resolved. That
the plaintiffs were always ready and willing to perform
their part of contract by paying balance sale consideration
of Rs.50,000/- at any time from the date of agreement of
RSA No. 5994 of 2011
sale. Since the defendant failed to perform his part of
contract, plaintiffs caused issuance of notice dated
25.06.1990 calling upon the defendant to receive balance
sale consideration and to execute deed of sale. Since the
defendant failed to comply with the same, the plaintiffs
filed suit for specific performance and in the alternative,
sought for refund of earnest money of Rs.25,000/- with
interest at the rate of 18% per annum.
3. In the written statement, the defendant denied
the plaint averments and also questioned the
maintainability of the suit on the ground of limitation. It
was specifically contended that he had not entered any
agreement much less than the one relied upon by the
plaintiffs and receipt of Rs.25,000/- is also denied. In that
view of the matter, it is contended that there was no
necessity for any reply to the notice issued by the
plaintiffs. That defendant issued paper publication on
04.07.1990 through his power of attorney holder refuting
RSA No. 5994 of 2011
the claim of the plaintiffs having entered into the
agreement of sale.
4. Based on the pleadings, the Trial Court framed
issues and recorded evidence. The Trial Court by its
judgment and decree dated 07.04.1995 decreed the suit
and directed the defendant to execute register deed of
sale by receiving balance sale consideration of Rs.50,000/-
within one month from the date of order and deliver
possession of the land to the plaintiffs. Being aggrieved by
the same, the defendant preferred an appeal in
R.A.No.36/1995 before the First Appellate Court.
5. Considering the grounds urged, the First
Appellate Court framed points for consideration and having
held that the plaintiffs failed to prove their readiness and
willingness, allowed the appeal and dismissed the suit.
Being aggrieved by the same, the appellant No.1/plaintiff
No.1 is before this Court (plaintiff No.1 having passed
away, present appeal is been prosecuted by his legal
representatives).
RSA No. 5994 of 2011
6. Sri.Girish Yadawad, learned counsel for the
appellants reiterating the grounds urged in the
memorandum of appeal submits that the Trial Court has
rightly taken note of the facts of the case as well as the
evidence lead in by the parties. In that view of the matter,
the Trial Court held that the plaintiffs were always ready
and willing to perform their part of contract and that it was
the defendant who had not performed his part of contract.
Since there was no time stipulated for the purpose of
performance of agreement, as such, the plaintiffs having
waited for a reasonable time, had caused issue of legal
notice at Ex.P4 calling upon the defendant to receive
balance sale consideration and to execute deed of sale.
Thus, he submits that in the fact situation of the matter,
issuance of notice would indicate readiness and willingness
of the plaintiffs to perform their part of contract. He
further submits that execution of agreement and receipt of
Rs.25,000/- by the defendant has been appreciated even
by the First Appellate Court. When the agreement in
question and receipt of Rs.25,000/- i.e., the earnest
RSA No. 5994 of 2011
money is proved, the First Appellate Court ought to have
confirmed the decree passed by the Trial Court as there
was no other option in law. He submits that since the First
Appellate Court while allowing the appeal has directed for
refund amount of Rs.25,000/- to be paid at 18% interest,
the appellants on the other hand are ready to pay balance
sale consideration to the defendants with equal amount of
interest and same may have to be considered in favour of
appellants. Hence, he submits that the appeal may be
allowed to consider the substantial question of law raised.
7. On the other hand, learned counsel for the
respondents submits that the subject matter of the
agreement is the land measuring 38 acres 27 guntas. That
it is incomprehensible that such vast extent of land was
agreed to be sold for a paltry sum of Rs.75,000/-; he
further submits that in any case being aggrieved by the
order impugned in this appeal, plaintiff No.2 had filed
separate appeal in RSA No.5814/2011, which appeal was
dismissed by this Court by its order dated 09.12.2011. He
- 10 -
RSA No. 5994 of 2011
further submits that the appellants herein had filed a
review petition in RP No.1562/2012 against the said order
dated 09.12.2011 and the same was also been dismissed.
Thus, he submits that the present appeal has to be
dismissed on that count alone as the appellants herein
have exhausted all available remedies. He further submits
that even on the merit of the case, there is no whisper
either in the plaint or in the notice at Ex.P4 regarding the
plaintiffs having taken any proactive steps exhibiting their
readiness and willingness to perform their part of contract
which has been rightly taken note of by the First Appellate
Court. He therefore submits that no substantial question of
law arises for consideration and seeks for dismissal of the
appeal.
8. Heard both the parties. Perused the records.
9. Both the Trial Court and the First Appellate
Court concurrently found that there was an agreement
entered into between the plaintiffs and the defendants for
sale of the subject property for a sum of Rs.75,000/- and
- 11 -
RSA No. 5994 of 2011
that the plaintiffs had paid Rs.25,000/- towards part-
payment of sale consideration. It is settled position of law
that relief of specific performance is a discretionary relief.
The Court is not bound to grant such relief merely because
it is lawful to do so. The Trial Court at paragraph 9 of the
judgment while answering issue No.4, has held that the
pleading at paragraphs 7 and 8 of the plaint and the
evidence of PW1 would establish the contention of the
plaintiffs that he was ever ready and willing to perform his
part of contract and to pay balance sale consideration
amount to the defendant and to get sale deed executed
even till today. The evidence of PW1 regarding readiness
and willingness to perform his part of contract is not at all
challenged in the cross-examination and it is not the
contention of the defendant and also that there is no
evidence to show that the plaintiffs were not ready and
willing to perform their part of contract.
10. The First Appellate Court on the other hand
while referring to the factual aspect of the matter as well
- 12 -
RSA No. 5994 of 2011
as the issuance of notice at Ex.P4 at paragraph 19 of its
judgment has held that the plaintiffs did not make any
efforts to know about whether the dispute between the
defendants and the Forest Department were resolved or
not and that the plaintiffs without making any efforts had
kept quiet till the year 1990 i.e. after 5 years till issuing
the notice. Hence, the First Appellate Court came to the
conclusion that the plaintiffs failed to prove that they were
ready to perform their part of contract.
11. The Trial Court is in error in casting burden on
the defendant to disprove the evidence of PW1 regarding
readiness and willingness and expecting the defendant to
produce the evidence to the contrary, such an approach is
incorrect in view of the settled position of law, as burden is
always on the plaintiffs to prove the factum of readiness
and willingness under Section 16(3) of the Specific Relief
Act. On the other hand, the First Appellate Court found
evidence produced by the plaintiffs regarding their
readiness and willingness to be insufficient. Except making
- 13 -
RSA No. 5994 of 2011
bald averment in paragraphs 7 and 8 of the plaint and
issuing of notice, the plaintiffs remained quiet for a period
of 5 years which conduct has been taken note of by the
First Appellate Court to hold lack of readiness and
willingness on the part of the plaintiffs. No error or fault in
this regard can be found with the finding of the First
Appellate Court.
12. As brought to the notice of this Court by the
counsel for the respondents, regular second appeal in RSA
No.5814/2011 filed by plaintiff No.2 against the impugned
judgment and order has been dismissed by this Court vide
order dated 09.12.2011, confirming the judgment passed
by the First Appellate Court. The review petition filed by
the appellants herein is also dismissed.
13. In that view of the matter and the reasons
stated hereinabove, this Court is of the considered view
that no grounds are made out for interference and no
substantial question arises for consideration, as such,
- 14 -
RSA No. 5994 of 2011
appeal is dismissed. Order of the First Appellate Court is
confirmed.
14. In view of the dismissal of the appeal, pending
IAs. do not survive for consideration.
15. Learned counsel for the appellants is permitted
to file vakalath for one of the legal heirs of original
plaintiff.
Sd/-
JUDGE
KGK
