Karnataka High Court
A Laxmi Parvati W/O A Srinivas Rao vs G Shankarappa S/O Giriyappa on 4 July, 2024
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RSA No. 100922 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100922 OF 2014 (SP-)
BETWEEN:
SMT. A.LAXMI PARVATI W/O A.SRINIVAS RAO,
AGE: 43 YEARS, OCC: AGRICULRURE,
R/O ASHOK NAGAR, HAVAMBHAVI,
SIRAGUPPA ROAD, BELLARY-583103.
...APPELLANT
(BY SRI S.S. YADRAMI, SENIOR COUNSEL
FOR SRI GIRISH V. BHAT, ADVOCATE
SMT. PALLAVI PALEKAR, ADVOCATE)
AND:
G SHANKARAPPA S/O GIRIYAPPA,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O 17/19 KANAKA STREET,
RADIO PARK, COWL BAZAAR,
BELLARY-583103.
Digitally signed ...RESPONDENT
by SAROJA
HANGARAKI THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET
Location: HIGH
COURT OF ASIDE THE PART OF JUDGMENT DECREE REFUSING SPECIFIC
KARNATAKA
DHARWAD PERFORMANCE OF CONTRACT DATED 10.08.2010 PASSED IN
BENCH
DHARWAD R.A.NO.113/2008 ON THE FILE OF ADDITIONAL DISTRICT
JUDGE, BALLARY BY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 30.07.2008 PASSED IN O.S.NO.411/2007 ON
THE FILE OF THE I ADDITIONAL CIVIL JUDGE, SR.DN. BELLARY
AND SUIT AT O.S.NO.411/2007 BE DECREED WITH COST.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100922 of 2014
JUDGMENT
The present second appeal is filed under Section
100 of the Code of Civil Procedure, 19081 by the
plaintiff challenging the judgment and decree dated
10.08.2010 passed in R.A.No.113/2008 by the Court of
Additional District Judge, Ballari2 and the judgment and
decree dated 30.07.2008 passed in O.S.No.411/2007
by the Additional Senior Civil Judge, Ballari3 wherein
the suit for specific performance filed by the
appellant/plaintiff was dismissed by the Trial Court and
the First Appellate Court partly allowed the appeal of
the plaintiff and directed the defendant to refund the
advance amount of ₹50,000/- together with interest at
12% per annum from the date of agreement till the
date of payment with proportionate cost.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of
convenience.
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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3. Along with the above appeal, the appellant
has filed I.A.No.1/2023 under Section 5 of the
Limitation Act read with Section 151 of CPC seeking to
condone the delay of 1454 days in preferring the
present appeal.
4. In the affidavit filed in support of the
application, the appellant has deposed that she is an
agriculturist and not having any knowledge regarding
legal procedures and technicalities. That during the
final hearing of the regular appeal, the appellant was
suffering from arthritis and her movements and
traveling were restricted. That she had to undergo
treatment of naturopathy and yoga for nearly five
years. That due to the health issues there was delay of
nearly 5 years in approaching the advocate at the First
Appellate Court. That thereafter after receiving the file
from the advocate, again the appellant went for
naturopathy treatment due to which there was further
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delay in approaching the present advocate for the
purpose of preferring the present appeal.
5. It is relevant to note that although in the
affidavit accompanying the application, the appellant
has stated that she was suffering from arthritis and
that she was taking treatment, no material has been
produced along with the application in support of the
same. Further, the ailment complained of i.e., arthritis
is not a serious ailment so as to prevent the appellant
from pursuing the above appeal.
6. Notwithstanding the fact that the appellant
has not made out any ground to condone the delay as
sought for in I.A.No.1/2023, the learned counsel for
the appellant was called upon to make submissions on
the merits of the matter for admission, so as to
consider as to whether I.A.1/2023 is required to be
favourably considered.
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7. The submissions of the learned Senior
counsel, Sri.S.S.Yadrami assisted by learned counsel,
Sri.Girish V Bhat appearing for the appellant have been
heard.
8. The parties herein are referred to as per their
ranking before the Trial Court for the sake of
convenience.
9. It is the case of the plaintiff that the
defendant being the absolute owner in possession of
vacant site bearing Plot No.21, C.M.C. Ward No.XXV,
CTS Ward No.XXII, T.S.No.78 and 84, Block No.10
situated opposite Gokul Garden, Infantry Road,
Cantonment, Ballari4 entered into an agreement of sale
dated 15.12.20045 to sell the suit property for a total
sale consideration of ₹8,50,000/- and received part
sale consideration of ₹50,000/-. That the balance sale
consideration of ₹8,00,000/- was required to be paid
Hereinafter referred to as 'suit property'
Hereinafter referred to as 'said agreement'
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on the date of registration of the Sale Deed which was
required to be executed within three months. It is the
further case of the plaintiff that he tried to pay a sum
of ₹25,000/- on 14.03.2005 and ₹75,000/- on
10.06.2005. However, the plaintiff has not received
the same. That the defendant was required to clear the
bank dues and produce the clearance certificate which
was the condition precedent and the defendant was to
obtain survey sketch from the survey officer before
completing the sale transaction.
10. That the plaintiff was ready and willing to
perform his part of contract and had approached the
defendant with balance sale consideration amount.
However, the defendant requested for more time and
went on postponing the same. Hence, the plaintiff got
issued a legal notice dated 01.10.2007 calling upon her
to execute the same. That the defendant evaded
service of notice sent by RPAD. However, the notice
under Certificate of Posting has been received. That
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since the defendant did not comply with the demands
made in the notice, the suit was filed.
11. The defendant entered appearance through
his counsel and filed written statement denying the
plaint averments. The execution of the Agreement of
Sale and receipt of advance amount has also been
denied. However, the defendant admitted that he is
the owner of the property in possession and enjoyment
of the same. It is the case of the defendant that he is a
permanent resident of Kurubarahalli village in Harihara
taluk, Davanagere District and doing agriculture and
had no occasion to visit Ballari at any point of time. It
is further contended that one Sadashiva who is the
witness to the agreement who is doing real estate
business and also does work at municipality for some
commission, and as such the defendant and his
brother had given some signed bond papers to the said
Sadashiva to be sworn as an affidavit for the purpose
of changing the mutation entries. That the said
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Sadashiva, in collusion with the plaintiff and another
witness attested the concocted Sale Agreement. That
as on the date of the agreement, the value of the suit
property was much more than the sale consideration
mentioned in the agreement. That the said alleged
agreement is an inchoate document. Hence, the
defendant sought for dismissal of the suit.
12. Consequent to the pleadings of the parties,
the Trial Court framed the following issues:
"1. Whether plaintiff prove that, defendant has
executed an agreement of sale dated 15-12-
04, agreeing to sell the suit property for
Rs.8,50,000/- and has received Rs.50,000/-
as an advance?
2. Whether the defendant prove that, this suit
agreement is created by Sadashiva and
others as pleaded in Para 8(d) of W.S?
3. Whether plaintiff prove that, she was always
ready and willing to perform her part of
agreement?
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4. Whether plaintiff is entitled for the relief of
decree for specific performance?
5. What order or Decree?"
13. The plaintiff examined herself as PW.1. Four
witnesses were examined as PW.2 to PW.5. Exs.P.1 to
P.12 have been marked in evidence. The defendant got
examined himself as DW.1. No documents have been
marked in evidence. The Trial Court by its judgment
and decree dated 30.07.2008 dismissed the suit with
costs.
14. Being aggrieved, the plaintiff preferred
R.A.No.113/2008. The defendant remained absent
before the First Appellate Court. The First Appellate
Court considering the appeal of the plaintiff, framed
the following points for consideration:
"1. Whether the trial Court erred in holding that
the plaintiff not proved that defendant has
executed an agreement of sale dated
15.12.04 agreeing to sell the suit schedule
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property for Rs.8,50,000/- and received a
sum of Rs.50,000/- as an advance?
2. Whether the trial Court erred in holding that
the defendant proved that suit agreement is
created by Sadashiva and others as pleaded
in para No.8(d) of written statement?
3. Whether the trial Court erred in holding that
plaintiff is not always ready and willing to
perform her part of contract?
4. Whether the trial Court erred in not passing
decree for the relief of specific performance
of contract?
5. Whether the judgment and decree of the trial
court is required to be interfered?
6. What order?"
15. The First Appellate Court by its judgment and
decree dated 10.08.2010 partly allowed the appeal and
passed the following order:
"The appeal filed under Order-41 Rule-1
and 2, R/w Sec.96 of CPC, against the judgment
and decree passed in OS No.411/2007
dt.30.7.2008 on the file of 1st Addl. C.J.(Sr.Dn.),
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Bellary, is hereby set aside and suit filed by the
plaintiff is decreed in part for Rs.50,000/- with
interest at 12% p.a. from the date of agreement
(15.12.2004) till the date of payment with
proportionate cost.
Suit filed by the plaintiff for specific
performance of contract is dismissed.
Send the records along with copy of this
judgment to the lower court forthwith."
16. Being aggrieved, the plaintiff has preferred
the above second appeal.
17. It is contended by the learned Senior counsel
for the appellant that the Trial Court had erroneously
dismissed the suit. That the First Appellate Court has
recorded a finding that the agreement is proved,
however failed to order for specific performance
despite the plaintiff having demonstrated that she was
ready and willing to complete the said transaction. He
further contends that the delay in filing the appeal is a
bonafide one and not intentional. That a liberal
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approach should be adopted while condoning the
delay.
18. In respect of the contention that a liberal
approach should be adopted while condoning the
delay, learned Senior counsel relies on the judgment of
the Hon'ble Supreme Court in the case of Collector,
Land Acquisition, Anantnag and Another vs. MST.
Katiji and Others6.
19. The submissions of the learned Senior
counsel have been considered and the material on
record has been perused.
20. It is forthcoming that the Trial Court after
elaborate appreciation of the oral and documentary
evidence on record, has noticed various inconsistencies
in the said agreement and recorded a finding that the
plaintiff had failed to prove the execution of the said
agreement and hence dismissed the suit.
AIR 1987 SC 1353
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21. The First Appellate Court upon a
reappreciation of the oral and documentary evidence
on record, noticed that the Trial Court has given much
importance to the defects in the agreement (Ex.P.1)
rather than weighing the evidence of the plaintiff and
the defendant. Thereafter, the First Appellate Court,
noticed the defence taken by the defendant that he
has not disputed his signature on the agreement, but
had contended that the same was for the purpose of
mutation of the suit property. The First Appellate Court
after noticing the evidence adduced by the plaintiff's
witnesses to the said agreement, held that the plaintiff
has proved the execution of the agreement.
22. While adjudicating upon point No.3 framed
for consideration, the First Appellate Court noticed that
the notice (Ex.P.2) has not been served on the
defendant and postal cover (Ex.P.5) has returned with
an endorsement as 'insufficient address'. Hence, the
First Appellate Court has recorded a finding that the
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certificate of posting (Ex.P.4) cannot be presumed to
have been served on the defendant when the postal
cover has returned with an endorsement as
'insufficient address'.
23. It has been further noticed that under the
said agreement, the balance sale consideration of
₹8,00,000/- was to be paid within three months. That
although the plaintiff has contended that she
attempted to pay the further amounts, no material is
produced by the plaintiff to demonstrate the same. The
First Appellate Court has further noticed that the
plaintiff has not demonstrated that she had sufficient
funds to pay the balance sale consideration. It was
further noticed that the plaintiff has got issued the
notice to the defendant only on 01.10.2007 i.e., after
2½ years of the execution of the agreement and hence
the First Appellate Court has recorded a finding that
the plaintiff was not ready and willing to perform her
part of contract.
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24. The First Appellate Court has adequately
reappreciated the oral and documentary evidence on
record and has rightly held that the plaintiff has not
demonstrated that she was ready and willing to
perform her part of contract.
25. It is relevant to note that the plaintiff in the
suit for specific performance is required to plead and
prove that she was ready and willing to perform her
part of contract from the date of the agreement after
the date of the decree.
26. In the present case, as noticed by the First
Appellate Court, the plaintiff has not demonstrated
that she had the sufficient funds nor adduced any
evidence to prove that she had the capacity to raise
necessary funds. Merely stating that the plaintiff was
ready and willing to perform her part of contract would
not tantamount to the plaintiff proving the same in the
absence of placing on record adequate material
regarding the same. Further, there is no explanation
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by the plaintiff for having issued the notice (Ex.P.2)
after lapse of 2½ years when the agreement
contemplated payment of balance sale consideration
and completing of the sale transaction in three
months.
27. As noticed above, the appellant has also
measurably failed to demonstrate that the inordinate
delay of nearly 5 years is required to be condoned.
28. The reliance placed by the learned Senior
counsel for the appellant on the judgment of the
Hon'ble Supreme Court in the case of Collector, Land
Acquisition, Anantnag6 will not aid the case of the
appellant since in the said case the Hon'ble Supreme
Court was considering a fact situation wherein the
State had preferred an appeal challenging the
compensation awarded in respect of acquisition of land
and the compensation was enhanced by 800% in the
said case and the delay was 4 days which was rejected
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by the High Court. In the present case, the period of
delay is 1454 days.
29. In view of the aforementioned, no useful
purpose will be served in favourably considering
I.A.No.1/2023 filed seeking to condone the delay of
1454 days in preferring the present appeal. Hence the
same is dismissed.
30. Consequently, the above appeal is dismissed.
Sd/-
JUDGE
Sh
CT:GSM
