Shri Ramkumar Ratanlala Baldava vs Shri Govind A/F Pusaram Bang @ ...
2023 Latest Caselaw 4241 Kant

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                                                             RSA No. 5202 of 2009




                               IN THE HIGH COURT OF KARNATAKA

                                         DHARWAD BENCH

                            DATED THIS THE 11TH DAY OF JULY, 2023

                                               BEFORE

                            THE HON'BLE MR JUSTICE ANIL B KATTI

                                      R.S.A NO. 5202 OF 2009
                     BETWEEN:

                     SHRI. RAMKUMAR RATANLAL BALDAVA
                     AGE: 43 YEARS, OCC: BUSINESS
                     R/O. NEAR BALAJI TEMPLE,
                     JAMAKHANDI 587301,
                     DIST: BAGALKOT
                                                                         ...APPELLANT

                     (BY SRI. MRUTYUNJAY TATA BHANGI, SRI. S. S. YALIGAR AND
                     SRI. MAHANTESH MATHAD, ADVS.)

                     AND:
        Digitally
        signed by    SHRI. GOVIND A/F. PUSARAM
        POOJA
POOJA   DEELIP       BANG @ MARAWADI
DEELIP  SAVANUR
SAVANUR Date:        AGE: 34 YEARS, OCC: BUSINESS
        2023.07.13
        11:16:11 -
                     R/O. ZUARI BAZAR, JAMAKHANDI 587301
        0700         DIST: BAGALKOT
                                                                        ...RESPONDENT

                     (BY SRI. V.P. KULKARNI AND M. C. HUKKERI, ADVS.)

                                                ***
                          THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC,
                     AGAINST THE JUDGEMENT AND DECREE DATED: 07.02.2009
                     PASSED BY THE FAST TRACK COURT JAMAKHANDI IN RA 36/2007
                     AND RESTORE THE JUDGMENT AND DECREE DATED 04.09.2007
                     PASSED BY THE PRINCIPAL CIVIL JUDGE SR. DN. JAMAKHANDI IN
                     OS 50/2002 ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY
                     DECREEING THE SUIT OF THE APPELLANT FOR SPECIFIC
                     PERFORMANCE.
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                                          RSA No. 5202 of 2009



     THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:

                          JUDGMENT

Appellant/plaintiff feeling aggrieved by judgment of

the first appellate Court on the file of Fast Track Court

At:Jamakhandi, in R.A.No.36/2007, dated 07.02.2009,

preferred this appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the trial Court for the sake of

convenience.

3. The factual matrix leading to the case of

plaintiff can be stated in nutshell to the effect that

defendant is the owner in possession of the suit property

bearing CTS No.1245 of jamakhandi. The plaintiff has

agreed to purchase the suit property for total

consideration of Rs.3,25,000/- and plaintiff has paid

earnest money of Rs.3,00,000/-. Accordingly, registered

agreement of sale dated 11.01.2000 came to be executed.

It was agreed to execute sale deed on 30.06.2002. The

defendant in spite of several requests made by plaintiff did

RSA No. 5202 of 2009

not come forward to execute sale deed. Therefore, the

plaintiff got issued legal notice dated 29.01.2001 and

defendant has replied to the said notice on 30.10.2001.

The defendant has refused to execute the registered sale

deed by accepting the balance consideration. Therefore,

plaintiff was constrained to institute the suit on hand for

the relief claimed in the suit.

4. In response to suit summons, the defendant

has appeared through counsel and filed written statement

contending that defendant is not exclusive owner of the

suit property, since it is joint family property. The

defendant has denied execution of registered agreement

sale dated 11.01.2000 consideration of Rs.3,25,000/- and

accepted Rs.3,00,000/- as the earnest money. It is the

case of the defendant that the plaintiff is an unlicensed

moneylender and carrying business of finance Corporation

under the name and style as "Mahesh Investment Finance

Corporation", Jamakhandi. The genitive mother of the

defendant was working as "Pigmy Collector" in the said

finance Corporation. The mother of defendant on account

RSA No. 5202 of 2009

of personal problem was forced to leave the job. However,

plaintiff insisted the mother of defendant to re-join the

work and she did not oblige. Therefore, this false suit is

filed. The defendant is financially sound and there was no

any need to sell suit property as claimed by plaintiff. Suit

property is the only property for residence of his family

members and in case, the decree for specific performance

is passed then in that event of the matter defendant would

be subjected to grater hardship. Therefore, on these

grounds prayed for dismissal of suit.

5. The trial Court has framed necessary issues.

The plaintiff to prove his case relied on the evidence of

P.W.1 to 3 and the documents Exs.P.1 to 7. The defendant

relied on the evidence of DW.1 and the documents at

Exs.D.1 to 7. The trial Court after appreciation of evidence

on record, decreed the suit of the plaintiff.

6. The defendant has challenged said judgment

and decree of trial Court before the first appellate Court on

the file of Fast Track Court At:Jamakhandi, in

R.A.No.36/2007. The first appellate Court after re-

RSA No. 5202 of 2009

appreciation of evidence by judgment dated 07.02.2009

partly allowed the appeal and directed the defendant to

refund the earnest money of Rs.3,00,000/- with 6%

interest per annum from 11.01.2000 till its payment and

refuse to grant decree for specific performance.

7. Appellant/plaintiff has challenged judgment and

decree of first appellate Court in modifying the judgment

and decree of the trial Court by granting the relief of

refund of earnest money and in refusing to grant specific

performance contended that both the Courts below have

concurrently held that the agreement of sale dated

10.01.2000 has been proved. However, the first appellate

Court on the ground of defendant being subjected to

greater hardship, in case decree of specific performance is

granted and modified the relief by ordering refund of

earnest money with 6% interest per annum. The question

of considering Section 20 of Specific Relief of Act, in the

absence of any pleading and evidence on record does not

arise at all. The first appellate Court was not justified in

refusing the grant decree for specific performance. The

RSA No. 5202 of 2009

hardship to operate the ground of defence must be such

as existed at the time of contract and not the one has

arisen subsequently from the changed circumstances. The

first appellate Court should have considered the hardship

with reference to circumstances existing at the time of

contract and hardship as contemplated under Section

20(2) should be of such nature which defendant could not

foresee. In the present case, no such circumstance was

made out by the defendant. The first appellate Court after

having allowed I.A.Nos.2 and 4 filed by the respondent

and I.A.No.3 filed by the appellant for production of

additional evidence should have released the case from

judgment and posted the matter for additional evidence.

Therefore, it should have either recorded the evidence by

itself acting under Order 41 Rule 28 of CPC or should have

sent the papers to the trial Court to record the evidence

and send the papers to it. However, the first appellate

Court after allowing I.A.Nos.2 to 4 has straight away

proceeded to pass the impugned judgment under appeal.

The approach and appreciation of oral and documentary

RSA No. 5202 of 2009

evidence on record by first appellate Court and findings

recorded are contrary to law and evidence on record.

Therefore, prayed for allowing the appeal and to set-aside

the judgment and decree of the first appellate Court.

Consequently to restore the judgment and decree passed

by the trial Court.

8. In response to notice of appeal, the

respondent/defendant has appeared through counsel.

9. This Court by order dated 18.01.2010 framed

the following substantial question of law for consideration:

"1. Whether the lower Appellate Court after having concurred with the finding of the trial Court that the appellant has proved the execution of agreement of sale by the respondent, receipt of Rs.3,00,000/- as advance consideration and his readiness and willingness to perform his part of contract, was justified in negativing the relief of specific performance on the ground that he will be put to hardship?

2. Whether the lower Appellate Court after having decided to allow I.A. No. II to IV filed

RSA No. 5202 of 2009

by both the parties under Order XLI Rule 27 seeking production of additional evidence was justified in proceeding to pass the judgment on merits without releasing the case from the judgment and posting it for recording the evidence by itself under Order XLI Rule 28 or sending the matter to the court below to record the evidence and findings thereon?"

10. Heard the arguments of both the parties.

11. On perusal of oral and documentary evidence

placed on record by both the parties, it would go to show

that the suit of plaintiff for relief of specific performance is

sought on registered agreement of sale dated 11.01.2000

executed by the defendant. Where under the defendant

being the owner in possession of the suit property bearing

CTS No.1245, Jamakhandi, has agreed to sell the same

consideration of Rs.3,25,000/- and received earnest

money of Rs.3,00,000/-, further agreement of sale deed

was agreed to be executed on 30.06.2002 though the time

was not the essence of contract. Defendant in resisting the

suit of plaintiff based on the registered agreement of sale

dated 10.01.2000 contended that he is not the absolute

RSA No. 5202 of 2009

owner of suit property and the same belongs to joint

family of defendant. Defendant was financially sound and

there was no need for the defendant to sell suit property.

The mother of defendant was working as "Pigmy Collector"

in the finance of plaintiff and due to hard work of mother

of defendant, the finance of plaintiff was flourished. The

mother of defendant on account of her personal problem

left the work. Plaintiff insisted to continue her service in

the finance, since she did not oblige and plaintiff filed false

suit. It is further contended by defendant that suit

property is the only property for residence of his family

members. In case decree for specific performance is

passed, the entire family members will be thrown to street

and in that event of the matter, the defendant will be

subjected to greater hardship.

12. The Courts below have concurrently held that

the plaintiff has proved, the due execution of agreement of

sale deed dated 10.01.2000 and passing of earnest money

of Rs.3,00,000/- out of agreed consideration amount of

Rs.3,25,000/-. The process of sale deed was agreed to be

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RSA No. 5202 of 2009

completed by 30.06.2000. The Courts below have also

concurred of plaintiff proving his ready and willing to

perform his part of contract. The said findings recorded by

both the Courts below are the question of facts which have

been decided on proper appreciation of evidence on

record. Therefore, the scope of this appeal is now limited

to decide the issue of hardship in terms of Section 20(2) of

the Specific Relief Act.

13. The defendant in para 23 of the written

statement has pleaded that the suit property is the only

property for residence of his family members and in case

decree for specific performance is passed, the entire family

members of the defendant will be virtually thrown to

streets. In that event of the matter, they will be put to

greater hardship. There is steep hike in the market value

of the suit property and suit property is situated in the

heart of the city. The trial Court has recorded the negative

finding on issue No.4, regarding hardship. However, first

appellate Court has recorded contrary finding on the issue

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RSA No. 5202 of 2009

of hardship while answering the point No.2 in the

affirmative.

14. Indisputably the defendant has filed I.A.Nos.2

and 4 under Order 41 Rule 27 of C.P.C. Similarly plaintiff

has also filed I.A.No.3 under Order 41 Rule 27 of C.P.C

and both of them have sought permission to produce the

additional evidence in support of their claim. The first

appellate Court allowed all these three applications while

deciding the appeal on merits and did not take re-course

to Order 41 Rule 28 of C.P.C.

15. Learned counsel for the appellant argued that

when first appellate Court decides to hold that application

filed by plaintiff and defendant under I.A.No.2 to 4 are

required to be allowed as additional evidence, since

without those documents effective adjudication of the lis

cannot be decided then it has to take re-course of law in

terms of Order 41 Rule 28 of C.P.C. and first appellate

Court should have released the case from judgment and

posted the matter for additional evidence. The first

appellate Court either can record the evidence or direct

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RSA No. 5202 of 2009

the trial Court to record the evidence. In case if the trial

Court is directed to record the evidence then to receive

such evidence and thereafter on giving opportunity to both

sides should have decided the appeal. However, the first

appellate Court for the reasons recorded in the para 19 of

the judgment held that:

"The proposed additional evidence produced by plaintiff and defendant are public documents namely certified copy of judgment, order sheet in Ex.Ps. property card and sale deed. No further evidence is required to prove the contents of additional evidence produced by both parties."

On recording such finding recorded, the first appellate

Court proceeded to dispose of the appeal on merits.

16. Learned counsel for the appellant/plaintiff has

argued that while considering the issue of hardship in

granting equitable relief in terms of Section 20 of the

Specific Relief Act, the recording of evidence is necessary

on the subsequent development claimed by the defendant

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RSA No. 5202 of 2009

which he did not foresee at the time of execution of

registered agreement of sale dated 11.01.2000.

17. Per contra learned counsel for the respondent

argued that the documents are admitted by both the

parties, therefore invoking of Order 41 Rule 28 would arise

only when the evidence is required. In the present case,

the documents sought to be produced by the defendant

are the subsequent development after the execution of

registered agreement of sale dated 11.01.2000. The

documents sought to be produced by plaintiff are on the

issue of hardship.

18. Learned counsel for the appellant in support of

his contention that the first appellate Court should have

taken re-course of law in terms of order 41 Rule 28 of

CPC, when production of additional evidence by way of

document sought to be produced by both the parties are

found to be necessary for effective adjudication of the

appeal on merits relied on the co-ordinate Bench judgment

of this Court in SHANTHAVEERAPPA VS K.N.

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RSA No. 5202 of 2009

JANARDHANACHARI DATED 08.12.2006, wherein it

has been observed and held that:

"Production of additional evidence-effect on decree passed by Trial Court on merits-Order 41 Rule 27, 28 and 29 of CPC, 1908-whether the appellate Court was justified in setting aside the decree of the trial Court solely on the ground that the application field for production of additional evidence under order 41 Rule 27 was allowed-Held, as per requirement of Order 41 Rule 28 of CPC whenever additional evidence is allowed to be produced, Appellate Court may either take such evidence or direct the Court from whose decree appeal was preferred or any other subordinate Court, to take such evidence and send to it to appellate Court-After hearing parties appellate Court pronounced judgment- Scheme of provision does not provide for setting aside of judgment considered on merits on ground that application filed for additional evidence was allowed and unless it falls within Rule of 23- Hence, Appellate Court not justified in setting aside the decree of Trial Court, Appellate Court directed to hear the appeal on merits first and then to take up the application filed for production of additional of evidence for

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RSA No. 5202 of 2009

consideration - Application for production of additional documents should be allowed only if complete justice could not be done without bringing documents on record.

In the said case, the first appellate Court decided the

application during the pendency of appeal. Therefore,

second appeal is held to be not maintainable, but same

has to be treated as miscellaneous second appeal. In the

present case, the production of documents are decided

along with the appeal. Therefore, second appeal is

maintainable. However, on allowing the application re-

course in terms of Order 41 Rule 28 has to be taken holds

good.

19. Learned counsel for the appellant relied on

another co-ordinate Bench judgment of this Court in

GABRIEL BHASKARAPPA KURI AND OTHERS VS. THE

UNITED BASEL MISSION CHURCH IN INDIA TRUST

ASSOCIATION (BOMBAY-KARNATAKA) AND OTHERS,

wherein this Court has emphasized the duty of the first

appellate Court when the document by way of additional

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RSA No. 5202 of 2009

evidence are allowed to be produced and in para 11 has

held as under:

"11. This is not the approach which is expected of a first Appellate Court, As is clear from the aforesaid legal position, the Appellate Court should have heard the appeal on merits. Then it should have come to the conclusion whether the evidence as it stands, some inherent lacuna or defect becomes apparent. Only if it found that it is unable to pronounce judgment on the basis of the evidence on record it should look into the additional evidence. Then it should have looked into the documents which are sought to be produced as additional evidence and then decide whether those additional evidence was necessary for the purpose of doing complete justice between the parties to enable it to pronounce the judgment. The observation that the additional evidence sought to be produced before the Court were not produced before the trial Court and, therefore, the trial Court has not given any findings on the subsequent documents and, hence, the matter is to be remanded back to the trial Court is a perverse finding. In each and every case of allowing the additional evidence before

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RSA No. 5202 of 2009

the first Appellate Court, it is obvious the same was not produced or permitted to be produced before the trial Court and the trial Court had no opportunity to have its say in the matter. When the statute expressly provides that, it is open to the first Appellate Court to look into that additional evidence, record oral evidence if necessary and decide the case on merits, it cannot be said that the parties have lost the right of appeal. The very provisions which provide for a light of appeal and procedure of preferring the appeal provides this procedure to be followed by the Appellate Court. On the ground that the parties would lose the right of appeal, the judgment and decree of the trial Court cannot be set aside and the matter should not be remanded back to the trial Court only to give opportunities to the parties to prefer an appeal.

20. In the present case no doubt production of

document as additional evidence under I.A.No.2 to 4 has

been considered along with the main appeal. The trial

Court has observed that no further evidence is required to

prove the contents of additional evidence by both the

parties. This observation of the first appellate Court in

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RSA No. 5202 of 2009

recording divergent finding on the issue of hardship is

contrary to one recorded by the trial Court cannot be

legally sustained. The document that are sought to be

produced under I.A.Nos.2 to 4 were not available before

the trial Court for recording its finding. The first appellate

Court has referred those documents for deciding the issue

of hardship without there being any evidence on the

additional documents allowed to be produced by the first

appellate Court. The first appellate Court after allowing the

production of document and additional evidence filed by

both the parties, then it should have taken recourse to law

in term of Order 41 Rule 28 of CPC. It was duty of the first

appellate Court either to the evidence or direct the Court

from whose decree the appeal is preferred to take such

evidence and send to it when taken to the appellate Court.

Thereafter, the first appellate Court was duty bound to

appreciate the said evidence by giving opportunity to both

the sides and then to decide the appeal in merits. In the

present case, indisputably the first appellate Court did not

exercise any of the option available under Order 41 Rule

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RSA No. 5202 of 2009

28 of CPC. The recording of evidence on the issue of

hardship based on the documents allowed to be produced

as additional evidence is absolutely necessary. Therefore,

the interference of this Court is required. Consequently,

substantial question of law is answered accordingly.

Consequently, proceed to pass the following:

ORDER

The appeal filed by the appellant/plaintiff is allowed.

Judgment of the first appellate Court on the file of

Fast Track Court At:Jamakhandi, in R.A.No.36/2007, dated

07.02.2009, is hereby set-aside.

The matter is remanded to first appellate Court for

recording necessary evidence on the documents which are

allowed to be produced as additional evidence under

I.A.Nos.2 to 4.

The first appellate Court itself shall record the oral

evidence and in the light of the oral evidence and the oral

evidence already on record with the documentary evidence

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RSA No. 5202 of 2009

dispose of the appeal on merits in accordance with law

without resorting to any remand.

The suit is of the year 2007 and the same is pending

for the last 16 years. The first appellate Court is directed

to take this matter out of turn and to dispose the appeal

on merits within the period of four months from the date

of appearance of parties before the Court.

Parties are directed to appear before the first

appellate Court on 26.07.2023.

The registry is directed to transmit the records with

the copy of this judgment to trial Court.

(Sd/-) JUDGE

AC