Karnataka High Court
Shashikanth vs Rajendra And Anr on 5 August, 2024
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NC: 2024:KHC-K:5682
RSA No. 200338 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.200338 OF 2022
BETWEEN:
SHASHIKANTH
S/O FAKEERAPPA BHOVI YADURMANI,
AGE: 52 YEARS, OCC: BUSINESS,
R/O BHOVI GALLI, CHITTAPUR,
TQ. CHITTAPUR,
DIST. KALABURAGI-585 211.
...APPELLANT
(BY SRI GURUBASAVA C. NAYAK, ADVOCATE FOR
SRI RAMACHANDRA K, ADVOCATE)
AND:
Digitally signed
by RENUKA 1. RAJENDRA
Location: HIGH S/O SHANKAR RAO HANCHATE,
COURT OF AGE: 62 YEARS, OCC: BUSINESS,
KARNATAKA R/O NEAR RAILWAY STATION, CHITTAPUR,
TQ. CHITTAPUR,
DIST. KALABURAGI-585 211.
2. VIJAY KUMAR S/O BABU RATHOD,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O MOGAL TANDA, TQ. CHITTAPUR,
DIST. KALABURAGI-585 211.
...RESPONDENTS
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NC: 2024:KHC-K:5682
RSA No. 200338 of 2022
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC AT CHITTAPUR IN R.A.NO.22/2019 DATED
25.02.2022 AND ALSO JUDGMENT PASSED BY THE CIVIL
JUDGE AT CHITTAPUR IN O.S.NO.40/2019 DATED 07.09.2019
AND FURTHER BE PLEASED TO REMAND THE MATTER TO TRIAL
COURT TO GIVE AN OPPORTUNITY TO THE APPELLANT TO
ADDUCE THE EVIDENCE ON THE AVAILABLE RECORDS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
The plaintiff is before this Court challenging the order
rejecting the plaint in exercise of power Order VII Rule
11(a) and (d) of CPC. Aggrieved by the dismissal, the
plaintiff filed an appeal before the Senior Civil Judge. The
said appeal is also dismissed, confirming the order
rejecting the plaint. Hence, this second appeal.
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2. The plaint averments would reveal that the
plaintiff's brother entered into an agreement to purchase
the property from defendant No.1. The said agreement is
dated 23.06.2010 and Rs.85,000/- is the consideration
amount agreed. The recital in the agreement would reveal
that Rs.40,000/- is paid on the date of agreement. The
balance was required to be paid within one year from the
date of the agreement. This recital is found in the
agreement as well as the plaint averments would also
disclose the same fact. The plaintiff further claims that he
acted as a mediator between his brother-the party, who
agreed to purchase the property and also defendant No.1,
who agreed to sell the property. It is further stated that
the party to the agreement i.e., plaintiff's brother is no
more. It is also stated in the plaint that on 09.03.2017,
defendant No.1 sold the property to defendant No.2 under
the registered sale deed. The suit is filed on 24.06.2019
stating that the plaintiff approached defendant No.1 on
15.06.2015, requesting him to execute the sale deed.
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Thus, the plaintiff filed a suit for specific performance of
contract to enforce the contract dated 23.06.2010.
3. The Trial Court before issuing summons to the
defendants, based on the averment made in the plaint
found that there is no cause of action to the plaintiff to file
a suit. The Trial Court also took a view that the suit is
barred by the limitation. The Trial Court noticed that the
plaintiff being the brother of the party to the contract
dated 23.06.2010 and who made a statement in the plaint
that he acted as a mediator between the parties to the
contract, does not have a cause of action to file a suit and
accordingly, rejected the suit. The Trial Court also noticed
that the plaintiff's brother is a party to the contract and
plaintiff is not a party to the contract and in the absence of
any statement in the plaint that plaintiff's brother died
without any class-I heirs, the plaintiff cannot maintain a
suit. On this count also, the Trial Court held that the
plaintiff has no cause of action to file a suit. In addition,
the Trial Court also noticed that the agreement itself
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provided that the time limit for execution of the sale deed
is one year from the date of the agreement dated
23.06.2010. The party to the agreement expired on
22.06.2011. Even if three years period is taken from the
last date provided under the agreement, the suit ought to
have been filed on or before 22.06.2014. The suit is filed
on 24.06.2019. On this count also, the Trial Court held
that the suit is barred by limitation.
4. Before the First Appellate Court, the plaintiff
tried to contend that the suit is in time and the plaintiff
having paid the money to defendant No.1 to facilitate the
contract dated 23.06.2010 is entitled to seek specific
performance. The First Appellate Court did not agree with
the contentions raised by the plaintiff and concurred with
the findings of the Trial Court. Consequently, the appeal
was dismissed.
5. Learned counsel appearing for the appellant
would contend that though there is no averment in the
plaint to the effect that the plaintiff's brother was bachelor
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and died issueless and the plaintiff being the class-II heir
is entitled to prosecute the suit as class-II heir of his
brother, the said fact should have been decided after
permitting the plaintiff to lead evidence in this behalf.
Thus, he would contend that the finding relating to the
cause of action recorded by the Trial Court as well as the
First Appellate Court is premature. He would also submit
that the suit is maintainable, as the plaintiff has paid the
amount to his brother to purchase the property from
defendant No.1.
6. This Court has considered the contentions
raised at the Bar.
7. Even it is to be accepted that the plaintiff is the
sole class-II heir of his brother who is said to have died
issueless, still the suit of the plaintiff is not in time. The
agreement clearly stipulate that the sale transaction has to
be concluded within one year from 23.06.2010.
Admittedly, the suit is not filed within three years from the
last date mentioned in the agreement. Thus, the suit is
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barred from the plain reading of the averment made in the
plaint. This being the position, this Court is of the view
that the order rejecting the plaint cannot be said to be
erroneous. This Court does not find any merit in the
appeal and no substantial question of law would arise for
consideration.
Accordingly, the appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
LG
