Karnataka High Court
Rukmini Sukumar vs Prema on 18 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 2053 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 2053 OF 2012 (SP)
BETWEEN:
1. RUKMINI SUKUMAR
W/O SUKUMAR
AGED ABOUT 52 YEARS
R/O. OPP. TO SUJATHA STD BOOTH
KHB COLONY, JYOTHI NAGAR
CHICKMAGALUR - 577 101.
2. PAVITHRA G.S.
D/O SUKUMAR
AGED ABOUT 30 YEARS
RESIDING AT SAPTHGIRI
REMAND HOME ROAD
CHICKMAGALUR - 577 101.
...APPELLANTS
Digitally signed
by SUMA B N (BY SRI. C.V. SRINIVASA., ADVOCATE)
Location: High
Court of AND:
Karnataka
PREMA
W/O MAYIGOWDA, D/O D.NO. 867,
SHIVARATHRESHWARA NAGAR, BANNIMANATAP B
LAYOUT, MYSORE-570015
...RESPONDENT
(BY SRI. A. RAVISHANKAR A/W H.C. LOKESHWARI, ADVOCATE
FOR RESPONDENTS)
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RSA No. 2053 of 2012
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 04.08.2012 PASSED IN
R.A.NO.71/2012 ON THE FILE OF THE V ADDITIONL DISTRICT
JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED:13.12.2011 PASSED IN
O.S.NO.1521/2006 ON THE FILE OF THE IV ADDL. SENIOR CIVIL
JUDGE, MYSORE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs aggrieved by the
judgment and decree dated 13.12.2011 passed in
O.S.No.1521/2006 on the file of IV Additional Civil Judge and
J.M.F.C, Mysore (hereinafter 'the Trial Court') which is
confirmed by the judgment and order dated 04.08.2012 passed
in R.A.No.71/2012 on the file of V Additional District Judge,
Mysore (hereinafter 'the First Appellate Court').
2. The above suit in O.S.No.1521/2006 is filed by the
plaintiff for relief of specific performance of contract contending
inter-alia that;
(a). The defendant is the absolute owner of the suit
schedule property, which was allotted in her favour by Mysore
Urban Development Authority (MUDA) on 14.07.2003.
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(b). That deed of sale in this regard was obtained by the
defendant from the Mysore Urban Development Authority. The
plaintiff being in need of site in Mysore city had agreed to
purchase and the defendant being in need of her financial
requirement had agreed to sell the suit schedule property.
Accordingly, an agreement of sale dated 05.07.2006 was
entered into between the plaintiff and the defendant, in terms
of which the defendant had agreed to sell the suit schedule
property in favour of the plaintiff for a valuable sale
consideration sum of Rs.4.00,000/-. That on the very same
day, plaintiff paid a sum of Rs.3.00.000/- as advance sale
consideration and the defendant had agreed to receive the
remaining balance sale consideration amount of Rs.1,00,000/-
at the time of execution and registration of the deed of sale
before Sub-Registrar.
(c). That the defendant had further agreed to execute
deed of sale within 3 months from the date of sale agreement.
That the plaintiff had requested on several occasions to the
defendant to execute and register the deed of sale as she was
ready to pay balance sale consideration of Rs.1,00,000/-. That
the defendant had executed deed of gift dated 28.07.2006 in
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favour of defendant No.2, that the said deed of gift was not
binding on the plaintiff. Plaintiff was always ready and willing
to perform her part of the contract. That since the defendant
did not comply with the requests made by the plaintiff, plaintiff
had caused issue of notice calling upon the defendant to
perform her part of contract. Since there was no favorable
response by the defendant, plaintiff was constrained to file the
suit for specific performance of contract.
3. Defendant in her written statement contended that the
plaintiff had suppressed material facts and had approached the
Court on the basis of false and fabricated documents. It is
contended that plaintiff who is the sister of the defendant had
played fraud and cheated the defendant. In fact the husband of
the plaintiff Mayigowda who is the brother-in-law of plaintiff
had misused the relationship and the confidence which the
defendant reposed in the plaintiff and her husband said
Mayigowda. It is contended that the plaintiff's husband being a
retired Revenue Inspector had settled down at Mysore City.
Defendant being desirous of owning a site at Mysore had
approached MUDA. The plaintiff's husband had promised to
render necessary assistance in defendant getting the site
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allotted from MUDA. That plaintiff's husband took active
interest in not only processing the papers and in also getting
the site allotted to the defendant. But all the necessary
correspondence that was made by the defendant to MUDA were
through her brother-in-law i.e., the said Mayigowda. That just 2
days prior to 05.07.2006, the husband of the plaintiff had
informed the defendant that MUDA will be executing the deed
of sale on 05.07.2006 and asked the defendant and her
husband to come to Mysore for registration. Accordingly, the
defendant and her husband had come to Mysore on 05.07.2006
for registration. The husband of the plaintiff had taken them to
the Addl. District Registrar office, MUDA, Mysore at 4 p.m., and
presented the documents for registration and that on very
same day husband of the plaintiff had taken number of
signatures of the defendants on various stamp and blank
papers and also certain forms. That the deed of sale was
executed and registered at 4.45 p.m. The defendant's husband
and the son of plaintiff namely one Satish were the witnesses
to the said deed of sale. After the execution and registration of
the deed of sale, husband of plaintiff Mayigowda had stated
that he required signature on blank stamp papers to collect
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original deed of sale from the Office of the Addl. District
Registrar and also for applying and obtaining khata of the
property in the name of the defendant. It is further contended
said Mayigowda further represented that he would act as power
of attorney holder of the defendant for the purpose of obtaining
the khata transferred in her name by making necessary
application before the concerned authorities. That defendant
believing the said words of the husband of plaintiff, defendant
had affixed her signatures on blank stamp papers. It is further
contended that defendant never agreed to sell the property to
the plaintiff for Rs.4,00,000/-. The allegation of plaintiff paying
a sum of Rs.3,00,000/- is also denied. It is contended that
taking undue advantage of the signatures of the defendants
which was obtained by the husband of the plaintiff on blank
stamp papers in collusion with her husband has fabricated the
agreement in order to make wrongful gain. The defendant at no
point of time has entered into such agreement as claimed by
the plaintiff. It is further contended that the suit schedule
property has been conveyed in favour of the defendant No.2 in
terms of registered deed of gift dated 28.07.2006. As such,
defendant No.1 is not the owner of the suit schedule property
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anymore. The notice that was issued by the plaintiff has been
duly replied by the defendant. It is further contended that the
plaintiff had assured to withdraw the said legal notice and that
contrary to the said assurance, as suit has been filed.
4. Defendant No.2 filed her written statement and
admitted the relationship between the parties and further
contended that she has become the absolute owner of the suit
schedule property by virtue of registered deed of gift dated
28.07.2006 at Ex.P4 and also got transferred the khata in her
name and paying the kandhayam to the Municipal City
Corporation, Mysore. Defendant No.2 further contended that
there was no financial necessity for the defendants to sell the
suit schedule property as her husband is working as Supervisor
in a reputed Institution and contended that alleged sale
agreement is fabricated one. As such, sought for dismissal of
the suit.
5. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1) Whether the plaintiff proves that the defendant has
received advance amount of Rs.3,00,000/- and
executed agreement of sale on 5.7.2006?
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2) Whether the plaintiff proves that he is every ready
and willing to perform her part of contract?
3) Whether the 2nd defendant proves that the suit is
bad for mis-joinder of parties?
4) Whether the plaintiff is entitled for the relief as
sought for?
5) What Order or Decree?
Additional Issue:-
1) Whether the 2nd defendant proves there is no
privity of contract between herself and plaintiff?"
6. Three witnesses have been examined on behalf of the
plaintiff as PW1 to PW3 and exhibited 12 documents marked as
Ex.P1 to Ex.P12. Defendants got examined three witnesses as
DW1 to DW3 and exhibited 11 documents marked as Ex.D1 to
Ex.D11. On appreciation of the evidence the Trial Court
answered issue Nos.1, 2, 4 and additional issue No.1 in the
affirmative issue No.3 in the negative and consequently
decreed the suit as prayed for.
7. Being aggrieved by the aforesaid judgment and decree
plaintiff filed an appeal in R.A.No.71/2012 before the First
Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
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"1.Whether the Respondent-Plaintiff proves that Defendant
No.1 has executed agreement of sale dated 5.7.2006
agreeing to sell the suit schedule property for
Rs.4,00,000/- and received earnest money of
Rs.3,00,000/- and Defendant has agreed to receive
balance consideration amount of Rs.1,00,000/-and execute
the Sale Deed within 3 months and she is entitled for the
relief of specific performance of contract?
2. Whether the Respondent-Plaintiff further proves that
she has been ever ready and willing to perform her part of
contract?
3. Whether the Appellants-Defendants prove that her
signatures were obtained on blank stamp paper and
thereafter, the agreement of sale marked at Ex.P.5 is
created by the Plaintiff?
4. Whether the Appellants-Defendants prove that the
Judgment and Decree of the Trial Court are perverse,
unsustainable and Interference of this Court is required?
5. What order?''
8. On re-appreciation of the evidence, the First Appellate
Court answered point Nos.1 and 2 in the positive and points
Nos.3 and 4 in the negative and consequently dismissed the
appeal confirming the judgment and decree passed by the Trial
Court. Being aggrieved by the same appellant is before this
Court.
9. This appeal was admitted on 25.09.2013 and
substantial question of law was framed as under:
''1) Whether the lower appellate court was right and
justified in decreeing the suit of the plaintiff for specific
performance and also directed to hand over vacant
possession without recording a specific finding as to
whether the discretion to order specific performance was
necessary in the instant case?
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2) Whether the agreement/alleged contract which was
done by playing fraud, misrepresentation, coercion,
undue influence can be executed lawfully?"
Thereafter, by Order dated 18.04.2024 substantial
questions of law were reframed as under:
"1. Whether in the fact and circumstance of the case the
Trial Court and the First Appellate Court are justified in
holding that the plaintiff has proved the execution of
agreement dated 05.07.2006 and payment of sale
consideration as claimed by the plaintiff?
2. Whether in the facts and circumstance of the case the
Trial Court and the First Appellate Court are justified in
exercising their discretionary jurisdiction in granting the
relief of specific performance?"
10. Sri.Srinivasa, learned counsel for the appellant taking
through the material evidence placed by the parties before the
Court, more particularly with regard to the agreement of sale
dated 05.07.2006 produced at Ex.P5 submitted that a bare
perusal of the signatures appearing at page No.4 of the said
document particularly that of the plaintiff and a comparison
with the same with the signature of the plaintiff appearing on
the power of attorney at Ex.P1 would indicate that the said
signatures are different and distinct. He also referred to Ex.D10
and Ex.D11 to butters his argument with regard to differences
in the signatures of the plaintiff. Thus he submits that the Trial
Court and the First Appellate Court ought to have exercised
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their powers under Section 73 of the Indian Evidence Act to
appreciate the contention of the defendants with regard to
fabrication of the documents. Referring to the timings of the
execution and registration of the deed of sale at Ex.P3
submitted that the same would belie the case of the plaintiff
with regard to the defendant executing the agreement at Ex.P5
after execution and registration of the deed of sale. He
referred to the deposition of plaintiff's witness in extenso
including the deposition of scribe of the document to justify his
contention that such an agreement could never have been
entered into on the said date and timings. Thus he submits that
the Trial Court and the First Appellate Court have not
appreciated these aspects of the matter while adverting to the
issue of proof of the agreement. Further, he referred to the
reply notice, in response to the notice issued by the plaintiff.
In which the defendant had in detail set forth her defence
which regard to the alleged fabrication and forging of the
document. He submits that considering the relationship
between the plaintiff and defendant that of a sisters and
dominant role played by the husband of the plaintiff who is
none other than brother-in-law of the defendant, the Trial Court
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and the First Appellate Court ought to have framed appropriate
issues and points with regard to proof of the document, in the
absence of which the exercise of discretional power under
Section 20 of the Specific Relief Act was erroneously exercised
is his submission.
11. Sri.A.Ravishankar, learned counsel for the respondent
taking through the issues framed by the Trial Court and the
point for consideration framed by the First Appellate Court also
submits that the Trial Court and the First Appellate Court in the
first instance have erred in not framing the proper issues. In
furtherance to the averments and allegation made by the
parties. That necessary particulars with regard to allegation of
fraud, misrepresentation have not been provided by the
defendant, as such the evidence in the absence of pleading
would not fulfill the lacuna. It is his further submission that
nothing prevented defendant to seek framing of appropriate
issues as the defendant had totally denied the execution of said
document. It is his further submission that defendant has
prevaricated her stand at every stage, right from issuance of
reply notice to filing of written statement, leading evidence and
in the cross-examination as well as in the present appeal.
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12. Thus, learned counsel appearing for the respective
parties though submitted their arguments, however fairly
submitted in unison that in the absence of framing of proper
issues, the Trial Court and the First Appellate Court have
adjudicated the matter which requires reconsideration.
13. The proof of agreement in the peculiar fact
circumstance in the matter without framing of appropriate
issues would not meet the ends of justice. Inasmuch as
framing of the issues is a intrinsic part of adversarial litigation.
Though, it may be said that the parties being aware of their
respective case had gone into the trial, requirement of framing
of proper and specific issues is essential and imperative as the
same would also depend upon the species of evidence which
the parties would lead, particularly with regard to the proof of
execution of the agreement.
14. In the instant case on receipt of notice dated
26.09.2006 at Ex.P6 the defendant had issued a reply notice
08.11.2006 at Ex.P8 setting forth her case of plaintiff and her
husband creating and fabricating the agreement dated
05.07.2003 produced at Ex.P5. The defendant has also
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elaborately stated in the reply notice about the facts, incidental
and attendant circumstances under which the husband of the
plaintiff had purportedly obtained signatures on the stamp
paper and the blanks papers and forms. The contents of the
said reply notice at Ex.P8 have been repeated and reiterated by
the defendant in the written statement. Fraud,
misrepresentation and coercion have been alleged. Thus it was
incumbent upon the Trial Court as well as the First Appellate
Court who have framed the issues with regard to the said
averments instead only formal issues in the nature of plaintiff
proving receipt of Rs.3,00,000/- by the defendant as advance
amount while executing the agreement of sale on 05.07.2006
and plaintiff proving his readiness and willingness on her part of
the contact have been framed. This, in the considered view of
this Court, Though the Trial Court and the First Appellate Court
have disposed-of the case on merits, even as rightly pointed by
the learned counsel for the appellant as well as the respondent,
requires reconsideration.
15. It is for this reason, this Court is also of considered
view that the Trial Court and the First Appellate Court have
erred in not framing appropriate issues specifically adverting to
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the allegation of fraud, misrepresentation and coercion,
fabrication and concoction of the suit documents, leading to
perversity in the judgments and decrees.
16. In view of the foregoing reasons, the substantial
question of law framed as above have to be answered in the
negative and consequently the judgment and decree passed by
the Trial Court and the judgment and order passed by the First
Appellate Court are required to be set-aside by remanding the
matter to the Trial Court for fresh consideration by framing
appropriate issues.
17. Hence, the following:
ORDER
I. Appeal is allowed.
II. Judgment and decree dated 13.12.2011
passed in O.S.No.1521/2006 on the file of IV
Additional Civil Judge and J.M.F.C, Mysore and
judgment and order dated 04.08.2012 passed in
R.A.No.71/2012 on the file of V Additional
District Judge, Mysore are set-aside.
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III. The matter is remitted back to the Trial
Court. The Trial Court shall frame the issues
with regard to proof of agreement in the light of
the averments and allegations made by the
defendant with regard to fabrication and
concoction of the alleged agreement and
thereafter permit the parties to lead further
evidence thereon after affording sufficient
opportunity in this regard and shall dispose of
the matter in accordance with law.
IV. Parties are at liberty to seek amendment to
the pleadings by filing necessary application and
may also file additional documents, if required
and the same may be considered in accordance
with law.
V. Considering the long pendency of the matter
the Trial Court shall endeavour to dispose of the
matter within an outer limit of one year from the
date of receipt of certified copy of this Order.
Parties shall extend their necessary cooperation
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in expeditious disposal of the matter without
seeking unnecessary adjournment.
Vi. Since the parties are being represented by
their respective counsel, they shall appear before
the Trial Court on 05.06.2024 without waiting for
further notice.
VI. Registry to return the records.
Sd/-
JUDGE
RL
