Karnataka High Court
Smt. Dyavamma W/O Late Dodda ... vs Sri. M. Gadilingappa S/O: Late M. ... on 3 October, 2023
Bench: Sreenivas Harish Kumar, Ramachandra D. Huddar
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RFA No. 100300 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100300 OF 2017 (SP-)
BETWEEN:
SMT. DYAVAMMA W/O. DODDA BASAPPA,
AGE: 42 YEARS, OCC: AGRI,
R/O: NANDHI HALLI VILLAGE-583229,
TQ: GANGAVATHI, DIST: KOPPAL,
BY HER GPA HOLDER HONNURAPPA S/O. KARIYAPPA,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/AT NANDHI HALLI VILLAGE, TQ: GANGAVATHI.
...APPELLANT
(BY SRI. S.H. MITTALKOD AND
SRI. VINAY S. KOUJALGI, ADVOCATES)
AND:
1. SRI. M. GADILINGAPPA,
S/O: LATE THOTAAPPA, HINDU,
SINCE DECEASED BY HIS LR'S
1(a) SMT. M. JAYALAKSHMI W/O. LATE M. GADILINGAPPA,
VINAYAKA AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
BV
1(b) M. RAMANAGOWDA S/O. LATE M. GADILINGAPPA,
Digitally signed by AGE: 22 YEARS, OCC: AGRICULTURE,
VINAYAKA B V
Date: 2023.10.06
17:03:30 +0530 1(c) M. CHANDRA MOULI S/O. LATE M. GADILINGAPPA,
AGE: 21 YEARS, OCC: AGRICULTURE,
1(d) MISS. M. REKHAMMA D/O. LATE M. GADILINGAPPA,
AGE: 19 YEARS, OCC: STUDENT,
ALL ARE R/O: VENIVEERAPUR VILLAGE,
TQ: KURUGODU, DIST: BALLARI.
...RESPONDENT
(BY SRI. R.H. ANGADI, ADVOCATE FOR R1 (A-D))
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RFA No. 100300 of 2017
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD:
01.08.2017 PASSED IN O.S.NO.6/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE, GANGAVATHI, DECREEING THE SUIT FILED FOR
SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL HAVING BEEN HEARD RESERVED ON 26.09.2023
AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendant in O.S. No. 6/2014, a suit
for specific performance instituted by the respondent in the
court of Sr. Civil Judge, Gangavati. The respondent died during
the pendency of this appeal and his legal representatives have
been brought on record.
2. 10 acres 20 guntas of land in sy. No. 72/B of Nandihalli
village, Gangavati taluk, Koppal district is the subject matter of
the suit (suit property). The plaintiff stated that the defendant
entered into contract with him for selling the suit property to
for a consideration of Rs.18 lakhs. The defendant received
earnest money of Rs.17,92,000/- from him and executed an
agreement of sale on 04.12.2013 agreeing to complete the sale
transaction on or before 04.03.2014 by receiving balance
consideration of Rs.8,000/-. Within the stipulated time, the
defendant was required to discharge the loan obtained by her
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from State Bank of Hyderabad. Noticing that the defendant
was not inclined to execute the sale deed, the plaintiff issued a
notice to her on 22.01.2014 demanding of her the execution of
sale deed. As the demand did not yield any result, he
instituted the suit.
3. The defendant denied to have executed the agreement
and receipt of Rs.17,92,000/- towards earnest money. She
denied her signature on the agreement and stated that she
replied to the legal notice issued by the plaintiff.
4. Assessing the oral evidence of four witnesses from the
plaintiff's side and one witness of the defendant, so also the
documentary evidence as per Exs.P.1 to P.7, and Exs.D.1 to
D.34, the trial court recorded findings that the plaintiff was able
to prove execution of agreement by the defendant, receipt of
earnest money of Rs.17,92,000/- by her and the plaintiff's
readiness and willingness to perform his part of the contract.
These findings led to decreeing the suit of the plaintiff in terms
of the reliefs claimed in the plaint. Hence this appeal by the
defendant.
5. The legal representatives of defendant have got filed an
application, I.A. No. 1/2023 under Order 41 Rule 27 CPC and
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produced six documents to be received as additional evidence
in support of their case.
6. We heard arguments of Sri S.H. Mithalkod, learned
counsel for the appellant-defendant and Sri R.H. Angadi,
learned counsel for the respondent-plaintiff on merits of the
appeal as also the application, I.A. No. 1/2023.
7. As we are inclined to allow the application, we need not
discuss merits of the appeal, it is enough if we record reasons
for our decision to allow the application.
8. The documents produced by the defendant are - (i) a
letter of confirmation dated 07.12.2015 issued by Karnataka
Industrial Development Corporation to the effect that
compensation of Rs. 2,61,25,000/- was paid in connection with
acquisition of certain extent of lands in sy. Nos. 31/A, 32, 44/D,
93 and 94 of Veniveerapura village, (ii) a confirmation letter
dated 16.01.2012 issued by the Assistant Commissioner, Ballari
stating that compensation of Rs.59,55,000/- was disbursed by
issuing cheques in relation to acquisition of land in Sy. No. 86B
of Veniveerapura, (iii) a voucher for payment of compensation,
(iv) a cheque for Rs.2,61,25,000/- dated 18.07.2012 drawn in
the name of Smt.Mandagowdru Saraswathamma, (v) another
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cheque dated 28.02.2011 for Rs.59,55,000/- and (vi) bank
statement of defendant's account issued by State Bank of
India. Documents 1 to 5 are all photostat copies, document
no.6 appears to be computer generated copy with seal of the
bank.
9. In the affidavit subjoined with the application it is stated
by M. Ramanagouda, the son and legal representative 1(b) of
the respondent-plaintiff that while searching in the home, he
and other legal representatives were able to trace the
documents kept in a trunk belonging to his father. They found
that these documents were important and relevant for
appreciating the controversy involved in the suit. His father
could not produce the documents when he adduced evidence in
the suit. It was not within his knowledge that the documents
were available and therefore these documents are to be
received as additional evidence to decide the appeal effectively.
10. Sri S.H. Mitthalkod, learned counsel for the appellant has
not filed any statement of objections to the application filed
under Order 41 Rule 27 CPC, he did not seriously oppose the
application while arguing on merits; all that he submitted was
that even if the application was allowed, it would serve no
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purpose. Sri R.H. Angadi, placing reliance on a judgment of the
Supreme Court in the case of Sanjay Kumar Singh vs. State
of Jharkand (2022) 7 SCC 247 submitted that the
documents would throw light on the plaintiff's financial capacity
to enter into agreement and thus they enable the court to
pronounce judgment.
11. We need not much dwell on the scope of Order 41 Rule
27 CPC with reference to the cited judgment for, the appellate
court has ample power to receive documents by way of
additional evidence under three circumstances, one of which is
that in the opinion of the court, a document is required for
pronouncement of judgment or for a substantial cause. In this
case the applicant, i.e., one of the legal representatives of the
deceased plaintiff has stated that the existence of the
documents was not within his knowledge and they are required
now for a substantial cause in the sense that they help
establish his father's financial capacity to enter into an
agreement for the purpose of buying the suit land. If for this
reason, the documents are produced, they may be received and
it is for the applicant to establish that with the help of these
documents, they can establish the existence of preponderance
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of probability in their case. The interest of the defendant will
not be affected in any way as she gets an opportunity to
question the applicant on these documents. Therefore I.A. No.
1/2023 is allowed.
12. Once production of additional evidence is permitted, the
next procedure to be followed is found in Rules 28 and 29 of
Order 41 of CPC, there is no scope for remand if additional
evidence is permitted to be produced. However if the case falls
under the scope of Order 41 Rules 23 or 23-A of CPC even after
granting the application under Order 41 Rule 27, the case can
be remanded. Here is a case for remand for the following
reasons.
13. Firstly, during pendency of the suit, I.A. No. 7 under
Order 26 Rule 10-A of CPC was filed by the plaintiff for the
purpose of obtaining the opinion of finger print expert. As the
thumb impression found on the agreement was disputed by
defendant, opinion of expert was sought. When this appeal
came before the co-ordinate bench on 18.11.2022, it was
observed that the trial court deferred the consideration of I.A.
No. 7 till the defendant's evidence was over and since the trial
court did not consider the said application after the defendant's
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evidence, it was necessary that opinion of the expert could be
obtained at the appellate stage. Accordingly the thumb
impression of the defendant was obtained and it was sent to
the expert for comparing it with the disputed signatures on the
agreement. Now the expert has given an opinion.
14. As the trial court failed to appoint an expert when the
matter was pending before it and now that the opinion is
available, it is necessary that the trial court has to consider the
opinion and arrive at proper conclusions based on the report.
Before that, the parties are to be given an opportunity to
adduce further evidence if necessary and the expert may also
be examined so that proper conclusions can be drawn.
15. Secondly the defendant did not enter the witness box,
rather she chose to examine her power of attorney as DW1. In
the facts and circumstances it is necessary that she herself
should tender evidence. It was a point of argument of Sri
R.H.Angadi that the defendant remained away from the witness
box intentionally shirking to face the cross examination and
therefore adverse inference was necessary to be drawn against
her. That apart, as the legal representatives of the plaintiff are
permitted to produce additional evidence, necessarily they have
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to adduce oral evidence on the documents that they have
produced along with the application under Order 41 Rule 27
CPC. As the trial court has to record evidence for this purpose,
an opportunity may be given to defendant to adduce evidence.
If she fails, necessary inferences may be drawn.
16. Therefore the above two reasons being sufficient to
satisfy the requirement of Order 41 Rule 23-A CPC, we set
aside the judgment of the trial court and remand the case for
disposal afresh on merits. Now the following:
ORDER
Appeal is allowed. Judgment dated 01.08.2017 of the
trial court is set aside. The matter is remanded to the trial
court for the following purposes.
(i) The legal representatives of the plaintiff are
permitted to adduce further evidence on the
documents produced along with application under
Order 41 Rule 27 CPC. They are permitted to
produce originals of document nos.1 and 2 before
the trial court. In regard to marking of documents
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3 to 5, the trial court may take a proper decision
after hearing the parties.
(ii) The trial court shall permit further evidence to be
recorded on the expert's opinion by summoning the
expert.
(iii) The trial court shall direct the defendant to appear
and adduce evidence as DW2.
(iv) The trial court shall re-appreciate the entire
evidence and decide the suit afresh within a period
of six months from the date of appearance of the
parties before it.
(v) The parties are directed to appear before the trial
court on 02.11.2023 without fail.
There is no order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
