Karnataka High Court

Smt Nanjamma vs Sri T T Venkatappa on 5 February, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                           NC: 2024:KHC:4894
                                                        RSA No. 574 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 5TH DAY OF FEBRUARY, 2024

                                            BEFORE
                           THE HON'BLE MR JUSTICE M.G.S. KAMAL
                        REGULAR SECOND APPEAL NO. 574 OF 2023 (SP)
                   BETWEEN:
                   1.    SMT. NANJAMMA
                         W/O LATE HANUMAIAH
                         AGED ABOUT 79 YEARS
                         R/AT SINGONAHALLI VILLAGE
                         TIPPUR POST, YADIYUR HOBLI
                         KUNIGAL TALUK, TUMKUR DISTRICT-573 120.

                   2.    SMT NINGAMMA @ LINGAMMA
                         W/O LATE C. HANUMANTHA
                         AGED ABOUT 51 YEARS

                   3.    SRI GIRISHA
                         S/O LATE C HANUMANTHA
                         AGED ABOUT 23 YEARS

                   4.    SMT DEVIKA
                         D/O LATE C. HANUMANTHA
Digitally signed
by SUMA B N              AGED ABOUT 20 YEARS
Location: High
Court of                 APPELLANTS 2 TO 4 ARE
Karnataka
                         R/AT NO.222/3, SWATHI NILAY
                         NARAYANAPPA COMPOUND,
                         BEHIND KEB OFFICE
                         KUNIGAL TOWN, KUNIGAL TALUK
                         TUMKUR DISTRICT-572 130.
                                                               ...APPELLANTS
                   (BY SRI. SAMPATH A.,ADVOCATE A/W
                       SRI. MALLIKARJUN N.K., ADVOCATES)
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                                              NC: 2024:KHC:4894
                                           RSA No. 574 of 2023




AND:
    SRI T T VENKATAPPA
    S/O THIMMAIAH
    AGED ABOUT 65 YEARS
    R/A NO.189, 5TH CROSS
    6TH MAIN ROAD, INDUSTRIAL NAGAR
    WEST OF CHORD ROAD, BENGALURU-560 086.

                                                 ...RESPONDENT
(BY SRI. NAVEEN KUMAR L., ADVOCATE)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND ORDER DATED 29.11.2022
PASSED IN R.A.No.134/2022 ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 02.02.2022 PASSED IN O.S.No.8/14 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KUNIGAL.

     THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Appeal was admitted on 16.01.2024 to consider the

following substantial question of law:

"Whether the First Appellate Court is justified in dismissing the appeal confirming the judgment and decree passed by the Trial Court without framing the points for consideration and without adverting to the issues raised and considered by the Trial Court independently in compliance of Order XLI Rule 31 of CPC."

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2. This appeal is by the defendants aggrieved by the

Judgment and decree dated 02.02.2022 passed in

O.S.No.8/2014 on the file of Senior Civil Judge and JMFC,

Kunigal by which trial court has decreed the suit of the plaintiff

for specific performance which Judgment and decree has been

confirmed by Judgment and order dated 29.11.2022 passed in

appeal in R.A.No.134/2022 on the file of II Additional District

and Sessions Judge, Tumakuru. Being aggrieved by the same

the defendants are before this Court.

3. The above suit is filed by the respondent/plaintiff

seeking relief of specific performance of an agreement of sale

dated 06.11.2012 contending interalia that defendant No.1 is

the absolute owner of the property bearing Sy.No.128/P2

measuring 3 acres situated at Turuvekere Village, Yediyur Hobli,

Kunigal Taluk. That the defendant No.1 had entered into

agreement of sale dated 06.11.2012 for a total sale

consideration of Rs.10 lakhs out of which plaintiff had paid a

sum of Rs.9,75,000/- and balance consideration of Rs.25,000/-

was to be paid. That the plaintiff being ready and willing to

perform his part of the contract had approached the defendants

on several occasions and requested defendants to execute deed

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of sale in respect of the suit schedule property. Though the

defendant had promised to execute the registered deed of sale

did not comply with the same. Plaintiff had caused issuance of

notice on 30.01.2014 by Registered Post Acknowledgement Due

which was returned unserved with an endorsement "addressee

not found". Having left with no other alternate plaintiff filed the

above suit for specific performance.

4. On service of summons defendants filed written

statement denying the case of the plaintiff. It is contended that

defendant No.1 is the absolute owner of suit schedule property.

Except suit schedule property defendant No.1 had no other

property for his avocation or livelihood and defendants 1 and 2

were carrying out agricultural activities in the suit schedule

property for eking out their livelihood. That defendant No.1

was constructing a residential house at Kunigal and as she was

in shortage of amount had availed finance/loan amount of

Rs.2,00,000/- from one Ramanna who was working as a Bus

Conductor. At the time of availing loan said Ramanna had

obtained signatures and thumb impression of the defendants on

blank e-stamp paper and document sheets and on demand

promissory note. Defendants agreed to pay interest @ 3% per

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month to said Ramanna till repayment of the loan amount.

Defendants repaid the entire loan amount of Rs.2,00,000/-.

Though the said person had assured to return and hand over

the documents he did not do so. However they have come

before the Court with false and frivolous suit misusing the said

documents. Hence sought for dismissal of the suit.

5. Based on the aforesaid pleading, trial Court framed

following issues:

"1. Whether the plaintiff proves that the execution of agreement of sale dated:06.11.2012?

2. Whether plaintiff proves the readiness and willingness to perform his part of contract?

3. Whether the defendants proved that they had obtained loan from one Ramanna and signed blank e-stamp paper in his favour?

4. Whether the plaintiff is entitled for the reliefs?

5. What Order or Decree?".

and recorded evidence plaintiff examined himself as PW-1

and examined four witnesses as PW-2 to PW-5 and exhibited 7

documents marked as Ex.P-1 to P-7. Defendant No.1 examined

herself as DW-1 and no documents were marked on behalf of

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defendants. On appreciation of pleading and evidence, trial

Court answered issue Nos.1, 2 and 4 in the affirmative and

issue No.3 in the negative and consequently decreed the suit as

sought for by its Judgment and decree dated 02.02.2022.

Being aggrieved by the same, defendants preferred an appeal

in R.A.No.134/2022. Considering the grounds urged in the

memorandum of appeal the first appellate Court framed

following points for its consideration:

1. Whether the appellant proves that the judgment of the trial court is opposed to law?

2. Whether the interference of this court in the impugned judgment and decree is necessary?

3. What order?".

and in a cryptic order without assigning any reasons or

adverting to the issues of controversy, passed the impugned

Judgment and order dated 29.11.2022. Being aggrieved by the

same appellants are before this Court.

6. Despite sufficient opportunities there has been no

representation on behalf of the respondent.

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7. Learned counsel for the appellants taking through the

contents of the impugned Judgment and order passed by the

first appellate Court submitted that the first appellate Court has

absolutely given no reasons whatsoever to arrive at the

conclusion confirming and concurring with the reasonings and

conclusion arrived at by trial Court. He submitted legal and

statutory obligation is casted on the first appellate Court to

have adverted to each of the issues framed by trial Court and

thereafter reappreciate the material evidence and then come to

its own conclusion reflecting independent application of mind.

That having not been done the first Appellate Court grossly

erred in dismissing the appeal warranting interference at the

hands of this Court.

8. Heard and perused the records.

9. Order 41 Rule 31 of CPC reads as under:

"31. Contents, date and signature of Judgment.-The Judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

10. The Apex Court in the case of B.V.Nagesh and

another Vs H.V.Sreenivasa Murthy reported in (2010) 13

SCC 530 at paragraphs 3 and 4 has held as under:

"3. How regular first appeal is to be disposed of by the appellate Court/High Court has been considered by this Court in various decisions. Order XLI C.P.C. deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate Court shall state:

a) the points for determination;

b) the decision thereon;

c) reasons for the decision; and -

d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all

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the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 188, para 15 and Madhukar and Others vs. Sangram SCC P.758, para 5."

11. Aforesaid principle of law has been reiterated by the

Apex court in the case of State Bank of India and Another Vs

Emmsons International Limited and Another reported in

(2011)12 SCC 174, H.Siddiqui (dead) by LRs Vs A.Ramalingam

reported in (2011) 4 SCC 240 and has held that sitting as a

court of first appeal it is the duty of the appellate court to deal

with all the issues and evidence led by the parties before

recording its findings. Same has been reiterated by the Apex

Court in the case of Somakka (dead) by legal representatives

Vs K.P.Basavaraj (dead) by legal representatives reported in

(2022) 8 SCC 261.

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