Karnataka High Court
Shankarayya And Anr vs Devadas And Ors on 5 February, 2024
Bench: B.M.Shyam Prasad, Rajendra Badamikar
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RFA No. 200134 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR FIRST APPEAL NO.200134 OF 2019 (SP)
BETWEEN:
1. SHANKARAYYA S/O MALLAYYA HIREMATH
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O KASAGERI ONI, VIJAYAPUR,
DIST. VIJAYAPUR - 586 101.
2. UMESH S/O MALLAYYA HIREMATH
AGE: 46 YEARS,
Digitally signed
by SHILPA R OCC: AGRICULTURE,
TENIHALLI R/O KASAGERI ONI, VIJAYAPUR,
Location: HIGH DIST. VIJAYAPUR - 586 101.
COURT OF
KARNATAKA
...APPELLANTS
(BY SMT. RATNA N. SHIVAYOGIMATH, FOR
SRI. AJAYKUMAR A. K., ADVOCATES)
AND:
1. DEVADAS S/O VIKRAM KALE,
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O H.NO.661 TO 106, WARD NO. 18 &,
H.NO. 805 TO 634 OTHER HOUSES,
JADARAGALLI GALLI, VIJAYAPUR,
DIST. VIJAYAPUR - 586 101.
2. ARUN S/O VIKRAM KALE,
AGE: 65 YEARS,
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RFA No. 200134 of 2019
OCC: AGRICULTURE,
R/O H.NO. 661 TO 66 WARD NO. 18 &,
H.NO. 805 TO 634 OTHER HOUSES,
JADARAGALLI GALLI, VIJAYAPUR,
DISTRICT VIJAYAPUR - 586 101.
3. LAXMIBAI W/O BHARAT KALE,
AGE: 42 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O H.NO.661 TO 107
WARD NO. 18, JADARAGALLI,
VIJAYAPUR, DISTRICT VIJAYAPUR - 586 101.
4. SHIVAJI S/O VIKRAM KALE,
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O H.NO. 661/74, WARD NO.18,
JADARAGALLI GALLI, VIJAYAPUR,
DISTRICT VIJAYAPUR - 586 101.
5. ANARAKALI S/O VIKRAM KALE
AGE: 64 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O H.NO. 661/106, WARD NO.18,
JADARAGALLI, VIJAYAPUR,
DISTRICT VIJAYAPUR - 586 101.
...RESPONDENTS
(NOTICE TO R1 TO R5 ARE HELD SUFFICIENT VIDE ORDER
DATED 11.07.2023)
THIS RFA IS FILED UUNDER SECTION 96 OF CPC,
PRAYING TO SETTING ASIDE THE JUDGMENT AND DECREE
DATED:01.08.2018 PASSED IN O.S.NO.109/2015 BY THE
LEARNED II ADDITIONAL SENIOR CIVIL JUDGE, VIJAYAPUR
AND CONSEQUENTLY DECREE THE SUIT OF THE
PLAINTIFFS, IN THE INTEREST OF JUSTICE.
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RFA No. 200134 of 2019
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiffs in O.S.No.109/2015
on the file of the II Additional Senior Civil Judge,
Vijayapura [for short 'the civil Court']. The appellants' suit
for specific performance of the alleged sale agreement
dated 28.08.2014 is dismissed on merits. The appellants
primarily contend that the first appellant was examined as
PW1 but did not tender himself for cross-examination, and
after he was examined in examination-in-chief, their
learned counsel on record [Sri. Srikant M Hiremath] died,
and as such, they were handicapped in prosecuting the
suit filed on merits; notwithstanding these difficulties, the
civil Court has decided the suit on merits holding that the
appellants have failed to establish the sale agreement
dated 28.08.2014.
2. Smt. Ratna N. Shivayogimath, the learned
counsel for appellants, is heard for disposal of the appeal
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in the light of this primary grievance and on perusal of the
reasons recorded by the Civil Court in the impugned
judgment. The respondents though served have remained
absent.
3. If the appellants have asserted the agreement
dated 28.08.2014 to purchase an extent of 6 acres 34
guntas in Sy.No.183/3+4/1 of Kathakanahalli Village of
Vijayapura Taluk and District contending that the
respondents have executed this agreement agreeing to sell
the subject property for a sum of Rs.49,66,250/- and that
the respondents have received a sum of Rs.10,00,000/- on
the date of executing the agreement, the second
respondent has filed written statement denying the
execution of the said agreement asserting that the second
respondent has ascertained that the agreement of sale
dated 28.08.2014 is a fabricated document. The
respondents had not filed a written statement when PW1
was examined, but the written statement is filed later.
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4. The Civil Court, in the light of these rival
pleadings, has framed as many as four Issues. The civil
Court, despite observing that a number of opportunities
have been extended to the appellants' witness (PW1) but
the witness has not tendered himself cross-examination,
has proceeded to examine the documents marked as
exhibits and concluding that the appellants have not
established the sale agreement. The civil Court has
opined that there is no evidence to establish the
agreement because the witness has failed to tender
himself for cross-examination.
5. This Court must frown upon the manner in
which the Civil Court has proceeded to dispose of the suit
on merit because, if the appellant's witness had not
tendered himself for cross -examination, the suit should
have been dismissed for default/ non-prosecution. This
Court must also observe that the civil Court could not
have taken the suit for disposal on merits unless the civil
Court could opine that the evidence on record was
sufficient.
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6. The civil Court's decision is not a decision on
merits, and this Court is of the considered view that it
would be appropriate in the facts and circumstances of
this case to set aside the impugned judgment and decree
restoring the suit for decision on merits as contemplated
under Order XLI Rule 23A of CPC calling upon the
appellants to appear before the Civil Court on a particular
date without further notice observing that the civil Court
must issue fresh notice to the respondents. Further, in
view of the provisions of Section 64 of the Karnataka
Court-Fee and Suits Valuation Act, 1958, the Registry
must be directed to refund the full Court Fee to the
appellants. For the afore, the following.
ORDER
(a) The appeal is allowed in part and the civil
Court's impugned judgment and decree dated
01.08.2018 in O.S.No.109/2015 on the file of
the II Additional Senior Civil Judge,
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Vijayapura is set aside and the suit is
restored for decision on merits.
(b) The appellants shall appear before the Civil
Court on 11.03.2024, and the Civil Court
shall take up the suit for decision on merits
after issuing fresh notice as would be
required in law to the respondents.
Sd/-
JUDGE
Sd/-
JUDGE
DS
