K Dasharath vs Smt S Surekha
2023 Latest Caselaw 4165 Kant

                                                  -1-
                                                        NC: 2023:KHC:23763
                                                          RFA No. 1193 of 2008




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 10TH DAY OF JULY, 2023

                                             BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                         REGULAR FIRST APPEAL NO. 1193 OF 2008 (SP)
                   BETWEEN:

                   1.    K DASHARATH
                         S/O N KRISHNAPPA
                         AGE:31 YRS
                         NO.82, N.S.PALYA
                         BANNERGHATTA ROAD
                         BANGALORE-76.                      .. APPELLANT

                   (BY SRI. M ERAPPA REDDY, ADVOCATE)

                   AND:

                   1.    SMT S SUREKHA
                         D/O M SANJEEV
                         AGE:40 YRS
Digitally signed
by                       NO.359, 17TH 'A' CROSS
DHANALAKSHMI             6TH PHASE, J.P.NAGAR
MURTHY
Location: High           BANGALORE-78.                    .. RESPONDENT
Court of
Karnataka          (V/O DTD 14/03/2012 SERVICE OF NOTICE TO RESPONDENT
                   IS HELD SUFFICIENT)



                         THIS RFA FILED U/O 41 RULE 1 R/W S 96 OF THE CPC
                   AGAINST THE JUDGEMENT AND DECREE DT.16.4.2008 PASSED
                   IN OS.NO.6972/04 ON THE FILE OF THE XXXIX ADDL. CITY
                   CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE
                   SUIT FOR SPECIFIC PERFORMANCE.

                        THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                   DAY, THE COURT DELIVERED THE FOLLOWING:
                              -2-
                                      NC: 2023:KHC:23763
                                         RFA No. 1193 of 2008




                        JUDGMENT

This appeal is filed by the plaintiff under Order 41

Rule 1 r/w. Section 96 of Civil Procedure Code, challenging

the judgment and decree dated 16.04.2008 passed by the

XXXIX Addl. City Civil and Sessions Judge, Bangalore City

in O.S.No.6972/2004, whereby the suit filed by the

plaintiff for specific performance has been dismissed.

2. For the sake of convenience, the parties are

referred to as per their rankings before the trial court.

3. The case of the plaintiff is that the defendant is

the owner of the suit schedule property and she offered

the suit schedule property to sell at Rs.225/- per sq.ft and

for total sale consideration of Rs.14,20,650/-.

Accordingly, she entered into a sale agreement dated

03.01.2003 in favour of the plaintiff. On the same day,

plaintiff paid a sum of Rs.1,00,000/- towards advance

consideration amount and the plaintiff was ready and

wiling to perform his part of the contract. Since the

defendant was not ready to perform her part of the

NC: 2023:KHC:23763 RFA No. 1193 of 2008

contract, plaintiff has issued a legal notice on 06.03.2004.

The same was returned with the shara, 'left'. Hence,

plaintiff filed a suit for specific performance of the

contract. Inspite of service of summons in the suit, the

defendant has not chosen to appear before the trial court.

Hence, she has been placed ex-parte. On the basis of the

pleadings of the plaintiff, the trial court has framed the

following issues:

"1) Whether the plaintiff proves that the defendant has executed an agreement of sale dated 3.1.2003 in favour of the plaintiff, agreeing to sell the plaint schedule property to the plaintiff @ Rs.225/- per sq. ft. and for total consideration of Rs.14,20,650/- as contended?

2) Whether the plaintiff proves that he has paid Rs.1,00,000/- as advance sale consideration to the defendant?

3) Whether the plaintiff was ever ready and willing to perform his part of the agreement?

NC: 2023:KHC:23763 RFA No. 1193 of 2008

4) Whether the plaintiff is entitled for the relief of specific performance of the agreement of sale dated 3.1.2003 as prayed?

5) What order or decree?"

4. To prove the case, plaintiff examined himself as

PW-1 and produced 5 documents. On behalf of the

defendant, neither any witness was examined nor

produced any documents. On the basis of the evidence of

PW1 and the documents produced by him, the trial court

answered issue Nos. 1 to 4 in the negative and dismissed

the suit. Being aggrieved by the same, the plaintiff has

filed this appeal.

5. The learned counsel appearing for the

appellant/plaintiff has contended that the defendant has

executed the sale agreement in favour of the plaintiff for a

consideration of Rs.14,20,650/-. The plaintiff has paid

Rs.1,00,000/- as advance sale consideration. Since the

defendant has failed to execute the sale deed after

collecting the remaining sale consideration amount,

NC: 2023:KHC:23763 RFA No. 1193 of 2008

plaintiff has filed the suit. The defendant has not

appeared before the trial court and denied the execution of

the sale agreement and also not produced any document.

Under the circumstances, the trial court has erred in

dismissing the suit.

6. He further contended that the trial court has

given a finding that there are three attesting witnesses to

the sale agreement, but none of them have been

examined. He further submits that now, the plaintiff has

filed an application under Order 41 Rule 27 of CPC seeking

permission to examine one of the attesting witnesses, who

is available and requests that the matter be remanded to

the trial court for fresh consideration.

7. This Court, by order dated 14.03.2012 held the

service of notice to respondent as sufficient.

8. Heard learned counsel for the appellant/plaintiff.

Perused the impugned order and the original records.

NC: 2023:KHC:23763 RFA No. 1193 of 2008

9. The only point for consideration in this case is,

"whether the judgment and decree passed by the trial

court is erroneous, arbitrary and capricious calling for any

interference from this Court?"

10. The trial court dismissed the suit only on the

ground that there is no evidence on record to prove the

execution of the sale agreement by the defendant. There

are three attesting witnesses to the sale agreement. The

plaintiff has not examined any witnesses and he has not

assigned any reason for not examining the attesting

witnesses. The burden lies on the plaintiff to prove the

execution of the sale agreement and ready and willingness

on his part to perform the contract. Now, before this

Court, for the first time, plaintiff filed an application under

Order 41 Rule 27 of CPC seeking permission to examine

one of the attesting witnesses. Under these

circumstances, I am of the opinion that the matter

requires to be remitted back to the trial court for fresh

consideration. Accordingly, I pass the following order:

NC: 2023:KHC:23763 RFA No. 1193 of 2008

(i) Accordingly, the appeal is allowed.

(ii) The judgment and decree dated 16.04.2008

passed in O.S.No.6972/2004 is set aside.

(iii) The matter stands remitted back to the trial

court, reserving liberty to the parties to adduce additional

evidence and produce additional documents.

(iv) The trial court is directed to re-consider the

matter afresh, in accordance with law, without being

influenced by the observations made in this order.

(v) All the contentions of the parties are left open.

Sd/-

JUDGE

CM