Karnataka High Court
Graverchand vs Syed Jaheeruddin on 4 April, 2024
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RSA No. 1295 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1295 OF 2014 (SP)
BETWEEN:
GRAVERCHAND
S/O URJARN,
AGE: 57 YEARS,
RESIDING AT NO.219,
BENKI NAWAB STREET,
MANDI MOHALLA,
MYSORE - 570 001
...APPELLANT
(BY SMT. SUNANDA SARKAR, ADVOCATE FOR
SRI. SANGAMESH R.B)
AND:
Digitally signed
by R DEEPA
SYED ZAHEERUDDIN
Location: HIGH S/O SYED ALLAUDDIN,
COURT OF
AGE: 64 YEARS,
KARNATAKA
RESIDING AT NO.41, P.H. COLONY,
BADAMAKAN, N.R. MOHALLA,
MYSORE - 570 001
...RESPONDENT
(BY SRI. L. RAJA, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 3.5.2014 PASSED IN
R.A.NO.1/2013 ON THE FILE OF THE III ADDL. DISTRICT &
SESSIONS JUDGE, MANDYA, SITTING AT SRIRANGAPATNA,
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RSA No. 1295 of 2014
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 19.11.2012 PASSED IN
O.S.NO.351/2006 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) & JMFC., SRIRANGAPATNA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular second appeal is filed by the appellant
challenging the judgment and decree dated 03.05.2014
passed in R.A.No.1/2013 by the III Additional District and
Sessions Judge, Mandya, sitting at Srirangapatna.
2. The parties are referred to as per their ranking
before the trial Court. The appellant is the plaintiff and
respondent is the defendant.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for specific performance of
contract against the defendant. It is the case of the
plaintiff that, the defendant is the absolute owner of the
suit schedule property. He agreed to sell the suit schedule
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property in favour of plaintiff for consideration amount of
Rs.4,50,000/- and the plaintiff paid a sum of Rs.50,000/-
towards advance amount and defendant executed the
agreement of sale dated 30.09.2005. It was agreed that
the plaintiff should pay the balance consideration amount
within 3 months from the date of execution of agreement
of sale. It is contended that the plaintiff required for
execution of sale deed on several occasions. Further, the
plaintiff got issued a legal notice on 17.10.2006, but the
defendant did not perform his part of contract. It is also
contended that plaintiff was/is ready and willing to
perform his part of contract, but the defendant committed
the breach of contract. Hence cause of action arose for the
plaintiff to file the suit for specific performance of contract.
4. Defendant filed written statement denying the
averments made in the plaint and also denied about the
execution of agreement of sale dated 30.09.2005 and also
receiving the part of consideration amount of Rs.50,000/-.
Further, it is contended that the plaintiff taking advantage
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of innocence of the defendant took his signature on the
blank paper and misused the same. It is contended that
there is no legal necessity to alienate the suit schedule
property and agreement of sale is the created document.
Hence on these grounds, he prays to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiff proves that the
defendant being the absolute owner executed
an agreement of sale in respect of suit
property in his favour on 30.08.2005 for
Rs.4,50,000/- due to his family and legal
necessity?
2. Whether the plaintiff further proves that the
defendant received the earnest money of
Rs.50,000/- from him on the very day?
3. Whether the plaintiff proves that he is ready
and willing to perform his part of contract?
4. Whether the defendant proves that the suit
document is bogus, forged and created one?
5. Whether the suit is barred by limitation?
6. Whether the valuation made and Court fee
paid are improper?
7. Whether the plaintiff is entitled for the reliefs
sought for?
8. What order or decree?
6. Plaintiff in order to substantiate his case,
examined himself as PW-1 and got examined two
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witnesses as PWs.2 and 3 and got marked 5 documents as
Exs.P1 to P5. In rebuttal, the defendant examined himself
as DW-1 and examined three witness as DWs-2 to 4 and
got marked 9 documents as Exs.D1 to D9. The trial Court
on the assessment of oral and documentary evidence of
the parties, answered issue Nos.1 to 3 and 7 in the
affirmative, issue Nos.4 to 6 in the negative, issue No.8 as
per final order. The suit of the plaintiff was decreed with
costs. It is ordered and decreed that the plaintiff shall
deposit the balance sale consideration of Rs.4,00,000/- as
per the covenant sale agreement Ex.P1 within one month
from the date of judgment and had to intimate the
defendant about the said deposit. The defendant need to
execute the sale deed within 2 months from the date of
receipt of said intimation, failing which, the plaintiff is at
liberty to get execute through the process of Court.
7. The defendant aggrieved by the judgment and
decree dated 19.11.2012, passed in O.S.No.351/2006
preferred an appeal in R.A.No.1/2013 on the file of III
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Additional District and Sessions Judge, Mandya, sitting at
Srirangapatna. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
1. Whether appellate has made out sufficient
grounds to allow the proposed amendment
of written statement at the appellate stage?
2. Whether at the appellate stage additional
evidence as sought for by the appellant can
be received?
3. Whether the trial Court has committed error
of law or fact and interference by this Court
in the judgment and decree passed by the
trial Court is necessary?
4. What order?
8. The First Appellate Court, on re-assessment of
the oral and documentary evidence answered point No.1 in
the negative, point Nos.2 and 3 in the affirmative, point
No.4 as per the final order. The appeal filed by the
defendant was allowed in part. The judgment and decree
passed in O.S.No.351/2006 dated 19.11.2012 by the trial
Court was set aside. The suit of the plaintiff was
dismissed.
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9. The plaintiff, aggrieved by the judgments and
decree passed by the First Appellate Court, has filed this
second appeal.
10. Heard learned counsel for the plaintiff and also
learned counsel for the defendant.
11. Learned counsel for the plaintiff submits that the
defendant executed the agreement of sale dated
30.09.2005 and it was agreed that the plaintiff should pay
the balance consideration amount within 3 months from
the date of execution of agreement of sale. She submits
that the plaintiff was/is ready to perform his part of
contract. Further in order to prove the execution of
agreement of sale, the plaintiff examined attesting
witnesses as PW.2 and PW.3. The trial Court has rightly
appreciated the evidence of PW.2 and PW.3, the attesting
witnesses and rightly passed the judgment decreeing the
suit for specific performance of contract. She submits that
the First Appellate Court has committed an error in not
properly appreciating the evidence of PW.2 and PW.3 and
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committed an error in dismissing the suit. Hence on these
grounds, she prays to allow the appeal.
12. Per contra, learned counsel for the defendant
submits that the defendant has denied the execution of
agreement of sale. He also submits that PW.2 and PW.3
have not supported the case of the plaintiff in regard to
paying of part consideration amount of Rs.50,000/-. He
submits that the plaintiff has not produced any records to
show that he has paid a sum of Rs.50,000/- towards
advance amount to the defendant. He also submits that
said agreement of sale got created by the plaintiff. He also
submits that First Appellate Court considering the evidence
of PW.2 and PW.3 has rightly held that plaintiff has failed
to prove the execution of agreement of sale. Hence
judgment and decree passed by the First Appellate Court
is just and proper and does not call for any interference.
Hence on these ground, he prays to dismiss the appeal.
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13. This court vide order dated 13.03.2024,
admitted the appeal on the following substantial question
of law :
1) Whether the First Appellate Court is
justified in passing the impugned judgment on
the ground of non-compliance of Section 16(c)
of Specific Relief Act?
2) Whether the First Appellate Court is
justified in reversing the judgment and decree
passed by the trial Court?
14. Perused the records and considered the
submissions of learned counsel for the parties.
15. Substantial question of law Nos.1 and 2:
Substantial question of law Nos.1 and 2 are interlinked
together. Hence they are taken together for common
discussion in order to avoid repetition of facts.
The plaintiff in order to substantiate his case,
examined himself as PW.1. He has reiterated the plaint
averments in the examination-in-chief and in order to
prove his case, the plaintiff has produced documents,
Ex.P1 is the agreement of sale alleged to have been
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executed by defendant in favour of plaintiff. It was agreed
that the defendant agreed to sell the suit schedule
property for consideration of Rs.4,50,000/-, accordingly,
the plaintiff paid a sum of Rs.50,000/- towards part of
consideration amount and it was agreed that remaining
balance consideration amount to be paid within 3 months
from the date of execution of agreement of sale and also
plaintiff got executed the registered sale deed from the
defendant. Though time was the essence of the contract in
Ex.P1, the plaintiff has not paid the said amount within 3
months from the date of execution of agreement of sale.
The plaintiff got issued a legal notice after lapse of 14
months from the date of execution of agreement of sale.
Ex.P2 is the legal notice got issued on 17.10.2006. The
defendant replied to the said legal notice through a
learned counsel vide reply dated 13.11.2006 marked as
Ex.P4. Ex.P3 is postal acknowledgment. The defendant has
denied the execution of agreement of sale dated
30.09.2005 and also regarding receipt of part
consideration amount. Ex.P5 is the death certificate of one
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Abdul Rahim, who died on 28.08.2003. Further, the
plaintiff also examined PW.2, who is said to be an
attesting witness to Ex.P.1, who has deposed that
defendant agreed to sell the suit schedule property in
favour of plaintiff under Ex.P1 and also deposed that
plaintiff has paid the part of consideration amount on the
date of execution of agreement of sale. In the course of
cross examination, he has admitted that no part
consideration amount was paid in his presence and further
he has deposed that the said agreement was prepared at
the instance of defendant. PW.3 also has deposed in the
similar terms of PW.2. In the course of cross examination,
this witness states that Ex.P1 is not written by him and
also did not know who had written the name in Ex.P1,
agreement of sale. He did not know who had written the
address in the sale agreement when he had affixed his
signature on Ex.P.1.
16. From the perusal of the agreement of sale
Ex.P1, the witness names are being handwritten wherein
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other contents are got typed. In rebuttal, the defendant
got examined himself as DW.1 and he has reiterated the
written statement averments in the examination-in-chief
and he also denied his signature on Ex.P1 and further the
defendant got replied to the legal notice as per Ex.P4. In
Ex.P4 the defendant has denied the execution of
agreement of sale and also his signature on Ex.P1. From
the perusal of records, it is clear that the plaintiff has
failed to prove that the defendant has executed the
agreement of sale as per Ex.P1 and also payment of part
consideration amount of Rs.50,000/- to the defendant as
alleged in Ex.P1.
17. From the perusal of Ex.P1, time was the
essence of the contract and the plaintiff was supposed to
pay the entire consideration amount within 3 months from
the date of execution of agreement of sale. The plaintiff
has made an attempt to pay the balance consideration
amount. On 17.10.2006, the plaintiff got issued legal
notice as per Ex.P2. Further, plaintiff has also not
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produced any records before the trial Court to show that
the plaintiff was possessing sufficient funds for purchasing
the said property. The plaintiff did not comply with the
terms and conditions of alleged agreement of sale. Thus
the plaintiff himself has committed the breach of contract.
Further, the plaintiff was/is ready and willing to perform
his part of contract. The First Appellate Court has rightly
considered the evidence of PW.2 and PW.3 and held that
the plaintiff has failed to prove the execution of Ex.P1 and
also passing of part consideration amount of Rs.50,000/-
to the defendant. The trial Court did not consider the said
aspect and proceeded to pass the impugned judgment.
The trial Court has committed an error in decreeing the
suit for specific performance of contract. The First
Appellate Court on re-appreciation of material evidence on
record has rightly passed the impugned judgment. This
Court has already recorded the finding that the plaintiff
has failed to prove the execution of agreement of sale and
also readiness and willingness to perform the part
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consideration. In view of above discussion, I answer
substantial question of law Nos.1 and 2 in the affirmative.
18. The learned counsel for the plaintiff has filed an
application for production of additional evidence i.e.,
I.A.No.1/2023. In support of an application, filed the
affidavit stating that the plaintiff has filed the suit for
specific performance of contract. The said suit was
decreed. The defendant aggrieved by the judgment and
decree passed by the trial Court has preferred an appeal in
R.A.No.1/2013. It is stated that the First Appellate Court
has dismissed the suit on the ground that the plaintiff has
failed to establish that he was ready and willing to perform
his part of contract and in order to show that the plaintiff
was ready and willing to perform his part of contract by
paying balance consideration amount, plaintiff has
produced the statement of passbook which discloses that
the plaintiff was having sufficient funds for purchasing the
suit schedule property. The said document was in the
custody of the plaintiff. The plaintiff did produce the
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document neither before the trial Court nor before the
First Appellate Court. Further, the plaintiff has not shown
any ground why the said document was not produced
before the trial Court or before the First Appellate Court.
The Hon'ble Apex Court in the case of N.KAMALAM (DEAD)
AND ANOTHER VS. AYYASAMY AND ANOTHER REPORTED IN
(2001) 7 SCC 503, held that "provision of Rule 27 of
Order 41 of CPC, are not designed to help the parties to
weaken the points and make up for omission earlier made,
jurisdiction of the appellate Court is restricted to permit
such additional evidence as it would enable it to pronounce
judgment and further held that the Court must always be
cautious in allowing application seeking to adduce
evidence particularly in the form of oral evidence after
long interval between the decree and application."
19. Admittedly, in the instant case, the decree was
passed by the trial Court on 19.11.2012 and judgment of
First Appellate Court was passed on 03.05.2014 and
application was filed on 05.09.2023. The plaintiff has not
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complied the requirements of Order 41 Rule 27 of CPC.
Hence, the plaintiff has not made any grounds to entertain
the application for production of additional evidence.
Accordingly, I.A.No.1/2023 deserves to be rejected.
20. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
Judgment and decree passed by the First
Appellate Court is confirmed.
I.A.No.1/2023 is rejected.
No order as to the costs.
In view of disposal of the appeal, I.A.No.1/2014
does not survive for consideration and accordingly
disposed of.
Sd/-
JUDGE
SKS
