Karnataka High Court
Razia Begum Begum W/O Ismail Awati vs Kadirbadshya S/O Peersa Awati on 14 February, 2024
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NC: 2024:KHC-K:1515
RSA No. 200069 of 2015
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200069 OF 2015 (SP)
BETWEEN:
RAZIA BEGUM W/O ISMAIL AWATI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O GADISOMANAL,
TQ: MUDDEBIHAL,
DIST: BIJAPUR-586212.
...APPELLANT
(BY SRI. AJAYKUMAR A.K., ADVOCATE)
AND:
1. KADIRBADSHYA
S/O PEERASA AWATI,
AGE:38 YEARS, OCC:AGRICULTURE,
Digitally
REPRESENTED BY HIS SPECIAL PWOER OF
signed by
SACHIN
ATTORNEY HOLDER
Location: PEERSA S/O LALASAB AWATI,
HIGH COURT
OF
KARNATAKA
AGE:63 YEARS, OCC: AGRICULTURE,
R/O: GADISOMANAL,
TQ: MUDDEBIHAL,
DIST: BIJAPUR-586212.
2. ISMAIL S/O IBRAHIMSA AWATI,
AGE: 42 YEARS, OCC:AGRICULTURE,
R/O: GADISOMANAL, TQ: MUDDEBIHAL,
DIST: BIJAPUR-586212.
...RESPONDENTS
(BY SRI. SANGANABASAVA B PATIL, ADVOCATE FOR R-1;
NOTICE TO R-2 SERVED BUT, UN-REPRESENTED)
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NC: 2024:KHC-K:1515
RSA No. 200069 of 2015
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 20.03.2012 PASSED IN (OLD)
O.S.NO.108/2008 (NEW) O.S.NO.45/2011 BY THE SENIOR
CIVIL JUDGE & JMFC AT MUDDEBIHAL AND WHICH IS SET
ASIDE IN R.A.NO.76/2012 BY THE I ADDL.DIST.JUDGE AT
VIJAYPUR, VIDE JUDGMENT AND DECREE DATED 20.12.2014
AND CONSEQUENTLY DISMISSED THE SUIT OF PLAINTIFF
WITH COST THROUGHOUT.
THIS APPEAL COMING ON FOR HEARING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, Appellant/defendant No.2 is assailing
the judgment and decree dated 20.12.2014 in
R.A.No.76/2012 on the file of I Additional District Judge,
Vijayapur, allowing the appeal and setting aside the
judgment and decree dated 20.03.2012 in
O.S.No.45/2011 on the file of Senior Civil Judge and JMFC,
Muddebihal, decreeing the suit of the plaintiff in-part.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, plaintiff has
filed suit seeking specific performance of agreement dated
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08.09.2005 in respect of the schedule property. The
defendants entered appearance and filed written
statement denying the averments made in the plaint.
4. The Trial Court on the basis of the pleadings
framed the issues for its consideration.
5. In order to establish their case, plaintiff has
examined five witnesses as PW.1 to PW.5 and marked six
documents as Ex.P.1 to Ex.P.6. Defendants have examined
one witnesses as DW.1 and no documents were marked.
6. The Trial Court after considering the material on
record, vide judgment and decree dated 20.03.2012,
decreed the suit of the plaintiff in-part, denying specific
performance of the agreement. Being aggrieved by the
same, the plaintiff preferred the appeal in R.A.No.76/2012
before the First Appellate Court and the appeal was
resisted by the defendants. The First Appellate Court after
considering the material on record, by judgment and
decree dated 20.12.2014, allowed the appeal and as such
set aside the judgment and decree in OS No.45/2011.
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Feeling aggrieved by the same, the defendant No.2 has
preferred the present second appeal.
7. This Court by order dated 26.06.2019
formulated the following substantial questions of law :-
(i) Whether the First Appellate Court
overreached the domain of contractual
rights and liabilities of the parties by
emphasizing too much of significance of
defendant No.1 ignoring that of defendant
No.2 ?
(ii) Whether the defendant No.2 was required to
establish special plea taken by her. If so,
whether has she established ?
(iii) Whether between defendant Nos.1 and 2 do
not have right, title and interest over the
property to convey the same to the plaintiff?
(iv) Whether hardship and disadvantage to the
defendants or ready and willingness are
redundant in the circumstances of the case ?
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8. Having taken note of the submission made by
the learned counsel appearing for the parties the following
additional substantial question of law is framed today.
"Whether the judgment and decree passed
by the First Appellate Court conforms to
Order XLI Rule 31 of Code of Civil Procedure ?"
9. I have heard learned counsel Sri Ajaykumar
A.K., appearing for the appellant and Sri Sanganabasava
B.Patil, learned counsel appearing for the respondents.
10. Sri Ajaykumar A.K., learned counsel appearing
for the appellant invited the attention of this Court to the
finding recorded by the First Appellate Court and
submitted that the relief sought for by the plaintiff seeking
for specific performance of agreement dated 08.09.2005
and the First Appellate Court without re-appreciating the
material on record on different footing, set aside the
judgment and decree passed by the Trial Court which
requires to be interfered in this appeal.
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11. Per contra, Sri Sanganabasava B.Patil, learned
counsel appearing for respondents sought to justify the
impugned judgment and decree passed by the First
Appellate Court.
12. Having heard the learned counsel appearing for
the parties and perusing the original records, it is pertinent
to mention here that the First Appellate Court has lost
sight of the provision contained under Order XLI Rule 31 of
Code of Civil Procedure and the judgment of the Hon'ble
Court in the case of Santosh Hazari vs. Purushottam
Tiwari (deceased) by LRs.1.
13. It is to be noted that it is a simple suit for
specific performance and not a case for devolution of
property of the parties governed by Mohammedan Law. In
that view of the matter, it is apparently a non est
judgment and decree passed by the First Appellate Court
(2001) 3 SCC 179
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which requires to be set-aside by remanding the matter to
the First Appellate Court to decide the matter on merits
considering the judgment of this Court as well as the
decision of the Hon'ble Supreme Court in respect of the
judgments rendered on suits for specific performance. In
that view of the matter, the substantial question of law
framed above favours the appellant/defendant No.2.
In the result, I pass the following order :
(i) Appeal is allowed.
(ii) Judgment and decree dated 20.12.2014 in
R.A.No.76/2012 on the file of I Addl.
District Judge Vijaypur is set aside and the
matter is remanded to the First Appellate
Court to pass appropriate orders in
accordance with law, after affording
opportunity of hearing to the parties.
(iii) Since the parties are represented before
this Court and in order to avoid further
delay in the matter, the parties are directed
to appear before the First Appellate Court
on 28.03.2024 at 11.00 a.m.
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(iv) On their appearance the First Appellate
Court shall dispose of the appeal at the
earliest, with an outer limit of six months
from the date of receipt of certified copy of
this judgment.
In view of remanding the matter to the First
Appellate Court, defendant No.2/appellant is entitled for
Court Fee paid in this appeal.
Sd/-
JUDGE
SN
