Karnataka High Court

Sri. Chikkamuniyappa vs Sri. Chinnappa on 10 October, 2023

Bench: Shivashankar Amarannavar

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                                                          NC: 2023:KHC:36877
                                                          RP No. 419 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 10TH DAY OF OCTOBER, 2023

                                             BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 REVIEW PETITION No. 419 OF 2023
                      BETWEEN:

                         SRI. CHIKKAMUNIYAPPA
                         S/O YALACHAPPA
                         AGED ABOUT 57 YEARS
                         R/AT GUDNAHALLI VILLAGE
                         KASABA HOBLI
                         MALUR TALUK
                         KOLAR DISTRICT - 563 130.
                                                              ...PETITIONER

                      (BY SRI RAGHAVENDRA RAO K, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
                      AND:
Location: HIGH
COURT OF
KARNATAKA
                         SRI CHINNAPPA
                         S/O ABBANNA
                         R/AT GUDNAHALLI VILLAGE
                         KASABA HOBLI
                         MALUR TALUK
                         KOLAR DISTRICT - 563 130.
                                                             ...RESPONDENT


                           THIS REVIEW PETITION UNDER IS FILED UNDER
                      SECTION 114 R/W ORDER 47 RULE 1 OF CPC, PRAYING TO
                      REVIEW THE JUDGMENT AND DECREE PASSED BY THIS
                      HON'BLE COURT IN RSA No.1959/2010 DATED 31.07.2023
                      AND ETC.,


                           THIS REVIEW PETITION COMING ON FOR ADMISSION
                      THIS DAY, THE COURT MADE THE FOLLOWING:
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                                            NC: 2023:KHC:36877
                                           RP No. 419 of 2023




                         ORDER

This petition is filed seeking review of the judgment

and decree passed by this Court in R.S.A. No. 1959/2010

dated 31.07.2023.

2. Heard learned counsel for petitioner on admission.

3. Petitioner was the respondent and respondent was

the appellant in R.S.A. No. 1959/2010. The grounds on

which this review petition is filed are enumerated in

paragraph No. 6 of the petition which are as under:

a. The findings recorded by both the Courts below on the issue of limitation have not been considered by this Hon'ble Court while reversing these findings. Hence, the judgment and decree passed by this Hon'ble Court requires review.

     b.   On   the   very    evidence     given    by   the
     Respondent/Plaintiff,   it    is   clear   that,   the

agreement which is sought to enforced was denied in the year 1994 itself. The very evidence of PW-1 and PW-2 clearly proves the same. Without considering this aspect, the

NC: 2023:KHC:36877 RP No. 419 of 2023

judgment and decree passed by the Courts below have been reversed.

c. It is submitted that, even on the issue of readiness and willingness, the Courts below have given cogent reasons for recording a finding that, Respondent/Plaintiff has not proved his readiness and willingness. However, without considering the findings recorded by the Courts below, the findings of the Courts below have been recersed. Hence, the judgment and decree passed by this Hon'ble Court requires review.

d. There is no substantial question of law framed on the aspect of readiness and willingness. Without framing a substantial question of law in this regard, no findings could have recorded on the aspect of readiness and willingness. Non-framing of substantial question of law is contrary to settled position of law. Hence, the judgment and decree requires review. e. Non consideration of judicial admissions of PW-1 and PW-2 in giving a finding regarding limitation is not in consonance with the judgment rendered by the Hon'ble Apex Court in Nagindas Ramdas v Dalpatram Iccharam 1974 AIR 471. Hence, the instant judgment requires review.

NC: 2023:KHC:36877 RP No. 419 of 2023

f. Adjudication of a regular second appeal without formulating a substantial question of law is not in consonance with the judgment rendered by the Apex Court reported in Narayan Rajendran and anr v Lekshmy Sarojini and others reported in (2009) 5 SCC 264 and Vijay Arjun Bhagat and others v Nana Laxman Tapkire and others reported in (2018) 6 SCC 727. The appeal is adjudicated on the issue of readiness and willingness without formulating a substantial question of law in this regard. Hence, the instant judgment requires review. g. The evidence given by DW-1 cannot have the effect of extending the period of limitation. The statutory period of limitation must be strictly construed. Hence, the instant judgment requires review.

h. The period of limitation for specific performance of contract is 3 years from the date fixed for the performance or if no such date is fixed, when the Plaintiff has notice that, performance is refused as provided under Section 54 of the Limitation Act. In the instant case, the Petitioner/Respondent has not refused performance in the year 1999. In fact, the performance is refused in the year 1994 in view

NC: 2023:KHC:36877 RP No. 419 of 2023

of the judicial admission of the Respondent/Appellant and also in view of the evidence of PW2 who is an attesting witness to the suit agreement. This aspect has not been considered. Hence, the instant judgment requires review.

i. There is non-compliance of proviso to Section 100(5) in not framing the substantial question of law with regard to readiness and willingness of the Respondent/Appellant. In view of the said non-compliance of the statutory provision and in view of the law declared by the Apex Court in this regard, the instant judgment requires review.

j. The judgment passed by this Hon'ble Court is required to be reviewed. If the judgment is not reviewed, Petitioner would be put to great prejudice and hardship."

4. Main ground which has been urged by the learned

counsel for petitioner is that no substantive question of

law has been framed with regard to readiness and

willingness of the respondent - appellant in performance

of the contract. Learned counsel for petitioner has placed

reliance on several decisions of the Apex Court stating that

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without framing substantive question of law second appeal

cannot be decided.

5. In this case substantive question of law has been

framed with regard to limitation which reads as under:

"Whether the Court below is justified in invoking Article 54 of the Limitation Act, 1963, in the face of the circumstance that the agreement which was sought to be enforced was denied only in the year 1999 and the suit was filed in the year 2000?'

6. This Court, considering the contentions of both the

appellant and the respondent, on perusal of the impugned

judgments passed by the trial Court and first appellate

Court and oral evidence of the parties, has answered the

substantive question of law. The trial Court and the first

appellate Court have held that the suit of the appellant -

plaintiff is barred by limitation and on that ground

dismissed the suit. After answering the said substantive

question of law this Court held that the suit of the

NC: 2023:KHC:36877 RP No. 419 of 2023

appellant - plaintiff is in time and it is not barred under

Article 54 of the Limitation Act.

7. Learned counsel for petitioner contended that this

Court has ignored the judicial admissions given by P.W.1

and P.W.2. Even the evidence of P.W.1 and P.W.2 have

been considered in paragraph No. 13 of the judgment.

Once the suit is held to be within the period of limitation,

then the other question that arises is readiness and