Karnataka High Court
Siddarajappa vs Smt. Mahadevamma on 1 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:24390
RSA No. 1322 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1322 OF 2021 (SP)
BETWEEN:
1. SIDDARAJAPPA
S/O CHENNAMALLAPPA
AGED ABOUT 56 YEARS
R/O SHETTAHALLI VILLAGE
HANGALA HOBLI
TALUK - GUNDLUPET
PIN CODE-571111
...APPELLANT
(BY SRI. SOMASHEKAR KASHIMATH, ADVOCATE)
AND:
1. SMT. MAHADEVAMMA
W/O LATE CHIKKALANAIKA
Digitally signed AGED ABOUT 53 YEARS
by DEVIKA M
Location: HIGH 2. MANIKANTA
COURT OF S/O LATE CHIKKAKALANAIKA
KARNATAKA
AGED ABOUT 35 YEARS
3. KUMARA
S/O LATE CHIKKAKALANAIKA
AGED ABOUT 33 YEARS
RESPONDENTS NO.1 TO 3 ARE
ALL R/O. BOMMALAPURA VILLAGE
HANGALA HOBLI
TALUK-GUNDLUPET
PIN CODE-571111.
...RESPONDENTS
-2-
NC: 2024:KHC:24390
RSA No. 1322 of 2021
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.12.2019
PASSED IN R.A.NO.43/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, GUNDLUPET, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 29.06.2019 PASSED IN O.S.NO.67/2010 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GUNDLUPET.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the defendants agreed to sell the
property for sale consideration of Rs.2,00,000/- and also
received advance amount of Rs.1,60,000/- and agreement of
sale is dated 09.05.2007 and he was always ready and willing
to perform his part of contract, but the defendants did not
come forward to execute the sale deed. Hence, he filed the
suit for the relief of permanent injunction.
3. In pursuance of the suit summons, the defendant
No.1 appeared and filed the written statement. The defendant
Nos.2 and 3 have adopted the written statement filed by the
defendant No.1. The defendant No.1 admitted the relationship
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of defendant Nos.2 and 3 and she also admitted that suit
schedule property belongs to her and denied the rest of the
plaint averments and prayed the Court to dismiss the suit.
4. The Trial Court having considered both oral and
documentary evidence placed on record, particularly the
evidence of P.Ws.1 and P.Ws.2 to 4 and also the documents
which have been confronted as Exs.D1, D1(a) to D1(d) and D2
during the course of cross-examination, assessing the evidence
available on record, comes to the conclusion that there is a sale
agreement, but answered issue Nos.2 and 3 as 'negative that
the plaintiff is not entitled for specific relief and he has not
made any efforts to get the sale agreement and notice was
issued at the fag end of completion period of limitation i.e., just
two months prior to completion of five months which is the
time fixed for performance of contract. In paragraph No.26 of
the judgment, the Trial Court discussed that notice was given
only on 08.03.2010 and brought to notice of this Court Ex.P4
that the plaintiff has not issued legal notice immediately after
completion of five months and not made any efforts to have the
sale deed in his favour and with regard to his willingness also,
no material on regard and whether he has got the remaining
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amount with him also, not produced any document and taken
note of the fact that Ex.P1 is the unregistered document and
considered the fact that no efforts were made by him and
particularly, extracted the admission of P.W.1 in Paragraph
No.29 of the judgment that there was interpolation in
agreement and also no signature was found with regard to
correction of agreement. Hence, not granted the relief of
specific performance and dismissed the suit.
5. Being aggrieved by the judgment and decree of the
Trial Court, the First Appellate Court also on re-appreciation of
both oral and documentary evidence placed on record, keeping
in view the grounds urged in the appeal, formulated the point
and accepted the findings of the Trial Court with regard to
execution of sale agreement and readiness and willingness and
with regard to the relief of specific performance, not accepted
the contention of the appellant/plaintiff and also taken note of
the period mentioned in the agreement which has been
extracted in Paragraph No.15 of the judgment and also with
regard to readiness and willingness and in detail discussed in
Paragraph No.23 and in Paragraph No.22 observed that the
plaintiff had not made any efforts to obtain the sale deed within
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the time period and confirmed the judgment of the Trial Court.
However, considered the material with regard to refunding of
earnest money which was paid by the plaintiff in favour of the
defendants.
6. Being aggrieved by passing of judgment ordering
only for refund of the amount, the plaintiff has filed this regular
second appeal praying this Court to grant the relief of specific
performance. The main contention of the learned counsel for
the appellant/plaintiff before this Court is that defendants never
entered witness box and even not denied readiness and
willingness and the very approach of both the Courts that it is
bounden duty of the plaintiff to prove the factum that he was
always ready to have the sale deed has not been established
and the said observation is not correct and hence, this Court
has to frame substantial question of law that both the Courts
failed to exercise the discretion in favour of the
appellant/plaintiff.
7. Having heard the learned counsel for the appellant
and also on perusal of the material available on record, both
the Courts comes to the conclusion that there is an agreement
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of sale. It is important to note that sale agreement came into
existence on 09.05.2007 and reasoning given by both the
Courts is that balance sale consideration is only Rs.40,000/-.
Having taken note of the material on record, particularly the
documentary evidence, notice was issued only in the month of
March 2010, almost at the fag end of completion of three years
from the date of agreement. Having taken note of said fact
into consideration, in Paragraph No.26 and 27 of the judgment,
the Trial Court discussed the material on record and comes to
the conclusion that the plaintiff kept quiet for a period of almost
two years two months from the date of agreement and time is
the essence of contract is also not in dispute i.e., five months
for performance of contract and immediately after expiry of five
months, the plaintiff has not issued a legal notice to execute
the sale deed and he kept quiet for two years two months.
8. The First Appellate Court also, while re-appreciating
both oral and documentary evidence placed on record, keeping
in view the contentions urged in the appeal, particularly in
Paragraph No.23 of the judgment, taken note of the said fact
into consideration and also date of agreement and issuance of
legal notice, comes to the conclusion that though sale
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agreement was executed, plaintiff has not made any efforts to
make the payment. In Paragraph No.26 also, discussed in
detail the contents of Ex.D1-sale agreement and particularly,
the time fixed for completion of transaction i.e., a period of five
months and not made any efforts to have the sale deed and
concurrent finding is given that the plaintiff was not ready and
willing to perform his part of contract.
9. It is important to note that Section 16(c) of the
Specific Relief Act provides with regard to readiness and
wiliness and the plaintiff has to prove that he was always ready
and willing to make the balance payment to have the sale deed
and nothing is shown by the plaintiff that he was ready to have
the sale deed, before filing the suit, except causing legal notice
on 08.03.2010 and Ex.P4 is very clear that plaintiff has not
issued legal notice immediately after completion of five months
time fixed for performance, though the counsel contend that
possession is with him. At the first instance, agreement is also
an unregistered sale agreement. Learned counsel for the
appellant would submit that subsequently, the appellant has
paid the stamp duty and mere payment of additional stamp
duty is not a ground for granting the relief of specific
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performance and while granting the relief of specific
performance and the plaintiff has to comply with Section 16(c)
of Specific Relief Act. When such being the case, the question
of exercising the discretion in favour of the appellant does not
arise. Hence, I do not find any ground to come to an other
conclusion and finding of both the Trial Court and the First
Appellate Court is based on material available on record and it
is not a fit case to invoke Section 100 of C.P.C. to admit the
appeal and frame any substantial question of law.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
